Presenting your case to overcome jurors’ built-in resistance to persuasion
Why don’t the best facts always win the case? Why are logical arguments rejected? The answer is that there are powerful psychological barriers that protect everyone – including jurors, from being overwhelmed by new information. Components of these barriers might be described as a “belief system” or “world view” in which people can make sense of their environment. To maintain the comfort of this status quo, the brain is skeptical, accepting some information but rejecting other information. And this skepticism can prevent juries from being persuaded by lawyers representing plaintiffs who are asking that the status quo be changed. This article explores important aspects of how the brain works and how trial lawyers can present their cases in ways that overcome the brain’s built-in
resistance to persuasion.
The brain’s resistance to persuasion cannot be overcome by overwhelming evidence or eloquent oration. When a person’s belief is challenged with solid evidence to the contrary, the belief often becomes stronger. When people are told what they should believe, many reject the message and strongly consider the opposite. And when the subject matter is complex, it is frequently rejected in favor of more simple explanations that seem logical. Each of these phenomena occurs in part because of how the brain works.
In a recent national experiment, these phenomena were tested, and the result was the election of a person who offered simple solutions to complex problems and recognized that appealing to core beliefs would overcome a more logical recognition of how complex things really are. This is the world from which our juries are selected. This article will be in two parts: the first part will explain why the brain works this way, and the second part will suggest some ways of advocating positions that will not be rejected by a brain that is built to be skeptical and resistant to attempted persuasion.
The brain works this way
Memories form the basis of our recognition and ability to function in the world. Neuroscientists still debate exactly where these memories reside in the brain. For purposes of our discussion, however, it doesn’t matter. What does matter is to understand that the brain has two hemispheres: left and right. The left has organized memories into a logical world-view, a model of the way things are supposed to be. The right has been described as the emotional brain that comprehends metaphor, love and deduction. The left brain is the more dominant. Neuroscientist V.S. Ramachandran is the director of the Center for Brain and Cognition at the University of California, San Diego. In his book, “The Evolutionary Biology of Self-Deception, Laughter, Dreaming and Depression: Some Clues from Anosognosia” (Medical Hypotheses, 1996) he theorized that:
The left hemisphere’s job is to create a model and maintain it at all costs. If confronted with some new information that doesn’t fit the model, it relies on Freudian defense mechanisms to deny, repress or confabulate; anything to preserve the status quo.”
Dr. Ramachandran explained why we have this tremendous need for consistency, coherence and continuity:
“At any given moment in our waking lives, our brains are flooded with a bewildering variety of sensory inputs, all of which have to be incorporated into a coherent perspective based on what stored memories already tell us is true about ourselves and the world. In order to act, the brain must have some way of selecting from this superabundance of detail and ordering it into a consistent ‘belief system,’ a story that makes sense of the available evidence. When something doesn’t quite fit the script, however, you very rarely tear up the entire story and start from scratch. What you do, instead, is to deny or confabulate in order to make the information fit the big picture. . . . Far from being maladaptive, such everyday defense mechanisms keep the brain from being hounded into directionless indecision
. . . .
Dr. Ramachandran’s theory is consistent with the earlier work of Stanford University psychologist, Leon Festinger, who developed the concept of “cognitive dissonance” which he explained as the state of two completely inconsistent or irreconcilable thoughts that cannot co-exist because of the mental “discomfort” that results. Dr. Festinger’s student and later collaborator, Professor Elliot Aronson, concluded that when cognitive dissonance is present, the left brain will distort or rationalize one of the thoughts so that it is consistent with the other. In other words, because people don’t like to believe that they may be wrong, they will limit or reject new information that doesn’t fit within their pre-existing beliefs. Psychologists call this “confirmation bias.” This is important for trial lawyers to understand because it explains why strong evidence is rejected when it conflicts with a contrary belief. The key is to present evidence in a manner that does not create the dissonance.
The left brain in action
People will adhere to their beliefs despite overwhelming evidence to the contrary. Well-known examples: Vaccines cause autism, and climate change is a hoax or is unrelated to carbon pollution. In their 2010 article “When in Doubt, Shout!” Northwestern University researchers David Gal and Derek Rucker found that when closely held beliefs were shaken, people “engaged in more advocacy of their beliefs.” In other words, when people started to have doubts about their beliefs after being confronted with contrary evidence, they became stronger advocates.
When people are told what to do (or what not to do), there is often a “boomerang effect” where people respond by wanting to do the opposite of what they were told. It is called “reactance,” a theory developed in 1966 by social psychologist Jack Brehm. Reactance is the resistance to something that is perceived as a threat to one’s autonomy or freedom of choice. Words like “must,” “should,” and “need” are known reactance triggers. I learned this lesson during a mock trial. I was going through the verdict form and told the jurors how the questions should be answered. I had noticed that a young woman juror was paying close attention. I thought that I must have been very persuasive. Shortly afterward, while I observed deliberations on a remote monitor, I was stunned when she said, “Can you believe that douchbag plaintiff lawyer telling us what to do?”
As V.S. Ramachandran observed, because our brains are flooded with a superabundance of detail that cannot be absorbed, it is designed to reject much of it. In human behavior terms, it can be described as a desire for a sense of order and predictability in their lives. TEDTalks speaker, Seth Godin, put it this way: “In a society with too many choices and too little time, our natural inclination is to ignore most of it.” (Carmine Gallo, “Talk like TED: The 9 Public-Speaking Secrets of the World’s Top Minds.”) Whether it is called “skepticism” or “reactance,” “mental overload” or “cognitive dissonance,” it is a fact that can’t be ignored.
Of course, not everyone automatically rejects new information. A recent study by the Pew Research Center (“How People Approach Facts and Information”) concluded that the rejection of new information does not necessarily depend on a person’s knowledge and education; rather, those who enjoy learning new things are more open to persuasion than those who find that trying new things is stressful. Also, the more stress there is in a person’s life, the more likely it is that they will resist new information. The bad news is that 49% of the sample fit into the categories of “doubtful” and “wary.” Many of these were distrustful in general of news sources.
Advocacy to overcome rejection
There is a story about a man who visits his doctor and complains, “When I raise my arm like this, my shoulder hurts.” The doctor’s advice: “Well, don’t do that.” If reactance is the expected result of being told what to think or what to do, then don’t tell jurors “you need to” or “you must” or “you should.” Don’t tell jurors that the evidence “compels” a verdict for your client. Social psychology studies on reactance have found that words like “possibly,” “perhaps,” “maybe” and “you might consider” do not ignite the reactance attitude of “you can’t tell me what to do.” Other studies on this phenomenon have shown that after making a suggestion of how the evidence might be evaluated, a simple postscript like “but you are free to decide for yourselves” almost completely eliminates the threat to personal autonomy. In other words, telling jurors that “the decision is up to you” prevents the rejection of your advocacy. (See, Steindl, et al., “Understanding Psychological Reactance” (Zeitschrift für Psychologie, Oct. 2015.)
Conclusion to Part One and Introduction to Part Two
The plaintiff is required to satisfy a burden of proof. “Burden” is an appropriate word because of the difficulty in motivating the brains of jurors to accept a change in the status quo. Asking jurors to transfer defendant’s money to plaintiff seeks a change in the status quo. The jurors are asking themselves, “Why should I do that?” It takes less effort not to act.
In my article, “Keep it Simple: A New Model for Trying a Lawsuit” (Advocate, Jan., 2015), I described the effect of presenting too much information and suggested how to package persuasion so that it avoids mental fatigue and cognitive overload. And much has been written on the effect of framing and themes to provide mental shortcuts that resonate with what seems to be common sense. But little has been written about the effect of questions that induce curiosity and can lead to self-persuasion. Curiosity has been described as a need to know and can be sparked by a question like, “why do you think that happened?” Studies have shown that when a question like that is posed to people, they don’t wait around for the answer; instead, they surmise for themselves what the answer is. And because they figured it out themselves, it bears none of the phenomena of reactance or belief challenge.
The Devil’s advocate
Earlier in this article, I discussed V.S. Ramachandran’s theory that the left hemisphere of the brain is designed to protect and maintain the status quo. But Professor Ramachandran also theorized that the right hemisphere is fundamentally different and acts as a “devil’s advocate” that forces the left hemisphere to revise its previous belief system. Stated another way, the right brain looks for inconsistencies and questions the status quo. When the left brain can no longer resist, it gives way, and a different belief becomes part of a new status quo.
Even though the left brain resists being convinced, the right brain, acting as devil’s advocate, can overcome the resistance. The title of “Devil’s Advocate” was given to a canon lawyer of the Catholic Church in 1587. When a candidate for sainthood was nominated, the job of the Devil’s Advocate was to take a skeptical view of the candidate’s character, to look for holes in the evidence and to argue that any miracles attributed to the candidate were fraudulent. In modern usage, it is a person who challenges assumptions to test the validity of a position.
The “Devil’s advocate” approach to persuasion
Self-persuasion is the goal of the devil’s advocate technique. In the 17th century, French philosopher, Blaise Pascal, observed: “People are usually more convinced by reasons they discovered themselves than by those found out by others.” This principle was studied by Elliot Aronson, a social psychology professor (now emeritus) at the University of California, Santa Cruz. In “The Power of Self Persuasion” (American Psychologist, Nov. 1999), Dr. Aronson observed:
Self-persuasion is almost always a more powerful form of persuasion (deeper, longer lasting) than more traditional persuasion techniques – that is, than being directly persuaded by another person, no matter how clever, convincing, expert, and trustworthy that other person might be – precisely because in direct persuasion, the audience is constantly aware of the fact that they have been persuaded by another. Where self-persuasion occurs, people are convinced that the motivation for change has come from within.
Using the methods of persuasion discussed above – that is, posing simple, non-confrontational questions that spark curiosity and self-persuasion, you can be the devil’s advocate by spurring the right brain into action and motivating the “do nothing,” “leave me alone,” left brain to accept the logic of your advocacy. This “devil’s advocate approach to persuasion” can be used at every stage of the trial.
Your first opportunity to persuade is voir dire. The statutory goal of voir dire is to find bias in prospective jurors. (Code of Civ. Proc. § 222.5.) However, the process can also start jurors down the path of considering concepts that are crucial to your case. Plaintiffs’ attorneys frequently start early in their advocacy to the panel:
- “Can you award a lot of money?” “Why not?”
- “Will you hold the defendants accountable for their misdeeds?”
- “You won’t? Why?”
- “Do you think doctors should be required to follow the rules?”
- “Please explain why you think there are exceptions.”
And if you represent a plaintiff, don’t you hate it when defense counsel gets jurors to agree:
- “Just because somebody can file a lawsuit doesn’t mean it has any merit,” or
- “I’ll be able to look the plaintiff in the eye at the end of the case and tell her she won’t get any money,” or
- “People need to take responsibility for their own actions.”
It’s pretty low-hanging fruit because that’s what most people believe. And, as previously discussed, it’s their belief system, locked securely in their left brain.
In voir dire, the jurors don’t want to be there. And you are not persuading anybody. In fact, the more you try to get jurors to agree with the proposition you’re advocating, the more they will resent your intrusion into their private thoughts and beliefs. (Reactance, remember?) In the 2015 Republican presidential debates, the moderator (like a lawyer) posed so-called “gotcha” questions to candidates. But, unlike prospective jurors, the candidates felt more empowered, and when the moderator asked questions that they didn’t like, they didn’t answer; instead, they attacked the moderator. This was not a new tactic: Newt Gingrich used it in 2012 when asked about how he had treated a former wife. He said he was “appalled” that he would be asked such a question, and the audience applauded wildly. Jurors can’t do that, but what they can do is decide to take a contrary position to the one you are trying to force them to take. (Boomerang effect, remember?) This is not a good way to start.
In his book, “Twelve Heroes, One Voice” (Trial Guides, 2011), attorney Carl Bettinger concluded that trying to persuade in voir dire can hurt your case. He suggested, “Try arguing the defense’s story.” This is the devil’s advocate approach. Some of his examples:
- “What difference does it make if an elderly person with Alzheimer’s gets good care or bad care; who cares?”
- “A death is a death; so what difference does it make if some person slips and falls on the church steps and dies, or they die due to neglect in a nursing home?”
- “You can’t undo the sexual assault; if someone loses their arm due to negligence, you can’t give them their arm back. So what good is money?”
Bettinger’s theory is that “the jurors will save you” because they will assume the role of “hero” whose role it is to speak up for what is right. If his theory is correct, jurors will argue your case for you, and if they agree with the “defense” position, they have disclosed their bias.
The possibilities for devil’s advocate questions are limited only by the advocate’s imagination.
- In a trip and fall case: “Sure, there’s a defect in the sidewalk, but why isn’t it all the pedestrian’s fault if she trips?”
- In a malpractice case: “The doctor spent years in medical school and training; it’s not believable that he’d do something wrong, is it?”
- In an auto-collision case: “So, the driver hit the bicyclist when she was answering a phone call. Lots of people talk on the phone while driving. Why should a person be held responsible for that?”
- In a misrepresentation case: “If a person is gullible enough to believe an untrue statement, why should the liar have to pay him back?”
Be careful not to phrase a question in a way that will draw an objection (or admonition from the judge) because the question seeks to “precondition” the juror or “prejudge the facts.” So, the lead-in to the question is important. For example, a common (unobjectionable) voir dire question is, “Do you believe that corporations should be accountable for the actions of their employees?” Phrased in the “devil’s advocate” style: “We know that corporations are business structures with managers and boards of directors. Why should corporations have to be responsible for the actions of its employees?”
Bettinger cautions that, before he engages in devil’s advocate-type questions, he discloses that the proposition is not his belief. Why is that important? Your role is to represent your client’s interests, and the jurors know that. Without the disclosure, jurors may be confused or may think that you are trying to trick them. Honesty is essential. One way of approaching the question is a preface that says, “What if the defense lawyer were to ask you . . .”
An opening statement is supposed to be limited to a disclosure of what the evidence will be during trial, and it is not the time for commentary that is appropriate only during final argument. However, as “devil’s advocate,” a lawyer should be able to couch “what the evidence will be” in terms of “what the evidence won’t be.” For example, “Our expert, Dr. Smith will not testify that the standard of care is to leave a scissors inside the body of his patient; he will testify that the surgeon must not close the patient before all surgical instruments are accounted for.” Or, “The evidence will not establish that this corporation was unaware of the harmful potential of their product; the evidence will show that the people running this corporation knew their product would harm people.”
Earlier in this article, I discussed the beneficial effect of juror self-persuasion. The only way self-persuasion can occur is if you aren’t talking. If there is demonstrative evidence that can tell a story, show it to the jury with only as much description as is needed so they know what they’re looking at. For example:
- “Photo number 1 is an X-ray of what an artificial disk is supposed to look like after implantation surgery.”
- “Photo number 2 shows what an artificial disk looks like when it is incorrectly implanted.”
- “And Photo number 3 is an X-ray of plaintiff’s neck after the defendant implanted the artificial disk.”
Then, just let the jurors look at the three photos. Allow them to conclude for themselves that the device wasn’t implanted correctly.
Expert direct examination
Your expert witness is enormously important to proving your case, but expert testimony has the potential of causing a left-brain lockdown of the jurors. In other words, a lengthy exposition of complex and unfamiliar subjects will result in confusion. A confused jury is not a convinced jury. The starting point is to overcome the skepticism that the expert’s conclusion is nothing more than a “bought and paid-for” opinion. This can be accomplished by establishing that there was a logical process that the expert used in his or her analysis. The methodology should be described in linear fashion, step by step, so that there is a confluence of protocol and evidence that leads to a logical conclusion. Here is an example of how to start this examination:
Q: Before reaching a conclusion, did you use any method of evaluation?
A: Yes, I did.
Q: Would you please explain how you went about the analysis of what happened?
A: First, I reviewed the records. Second, I reviewed the sworn testimony from everyone involved. Third, I measured what happened against the standard of care, that is, what good doctors do in similar circumstances. Fourth, I reviewed the published medical literature on the subject.
Q: Why did you use that method?
A: Because it is the only honest and scientific way to reach a valid conclusion.
Q: Why can’t you just start out with an opinion and then look for the evidence that supports it?
A: Because that can lead to a biased and invalid conclusion. You end up looking only for what will support your predetermined opinion and ignoring everything else.
The left brain will accept the information because it is logical and it is not preceded by anything that might conflict with a belief system. The next step is for the expert to explain the reason for the evaluation method. Here is an example:
Q: What records did you review?
A: I reviewed the medical records, the X-rays, the laboratory tests, and the depositions.
Q: Can you please explain why it was important for you to review these things?
A: Well, the medical records contain an explanation of what happened after the accident and before any treatment was received. This is called “the history.” Then we see what medical tests were done so the treating doctors could arrive at a diagnosis of the patient’s condition. Finally, the treatment records show what was done to help the patient. All of these things, together, tell the whole story.
Q: You said that you also read depositions. What was the importance of doing that?
A: Depositions contain testimony given under oath. I wanted to know what everybody involved said about what they did or what happened from their perspective.
In this way, you are providing answers to the silent questions jurors are asking themselves as their skeptical brains search for reasons to reject the testimony. The next step is to establish that the expert isn’t just concocting a conclusion that has no basis; rather, that there is a solid basis for the opinion.
Here is an example:
Q: As part of the process of analyzing the subject, did you read any publications?
Q: Why did you do that?
A: Because the medical and scientific articles and textbooks contain the combined knowledge and wisdom of many of the most reputable and experienced experts in the field. I believe that it’s important to study the subject thoroughly before reaching a final opinion.
Q: What did you read?
A: I read two recent articles by Dr. Jane Jones on the subject of repeated head trauma.
Q: Did those articles contain information that was valuable in arriving at your opinion?
Q: Would you say that the articles are reliable authority on the subject?
A: Absolutely. Dr. Jones is one of the most renowned experts in the field. And the journal is what is called “peer reviewed” which means that before it could be published, other doctors had to review it and confirm that it was a valid study.
Notice that the testimony does not mention what is in those articles; that would be hearsay. (Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 789.) But it is permissible for the expert to lay the foundation of what was considered in arriving at the opinion. (Roberti v. Andy’s Termite & Pest Control, Inc. (2003) 113 Cal.App.4th 893, 901.) The jurors will likely assume that the expert’s opinion is supported by what is written in the articles.
Finally, it’s time for the expert to give the opinion and its basis. Hopefully, by now, the jurors’ skepticism has been calmed; their left brains have not been confronted with a foreign idea that would be automatically rejected. But there is still the potential for rejection if your expert does not simplify the analysis. Your expert witness may want to present a multi-faceted analysis but the testimony may not be accepted and retained because the human brain has limits.
Cognitive load is the concept that the brain has only a finite ability to process new information and that learning and recall is impaired by overloaded short-term memory. Studies have shown that the less effort it takes to process a factual claim, the more accurate it seems. What if the expert has seven points of criticism or analysis? Figure out a way to group them into three categories. Why three? Human experience has demonstrated that people are able to understand and remember things that are grouped into three sections. The rule of threes has been applied for thousands of years and examples are found in the Bible and in classical Greek drama and rhetoric. It is practiced and applied in music, plays, stories, speeches and sayings. Whether it is an aspect of brain capacity or a memory device, the rule of threes is a tried and true method.
Even a vastly simplified explanation of a complex subject may still be beyond the jurors’ ability to make sense of it. Analogy is another technique your expert can use that will help the jurors understand the unfamiliar. “Analogies,” Sigmund Freud reportedly said, “decide nothing, but they can make one feel more at home” and that a good analogy may help to clarify the issues. Simply stated, an analogy is a comparison between two things that can highlight similarity. Some examples:
- In a breast cancer misdiagnosis case: “When the cancer began to grow, it was like a wildfire that couldn’t be controlled.”
- In a slip and fall case: “The wax on the floor was like an invisible sheet of ice.”
In the cancer case, the jurors might not understand oncology, but they know about wildfires. And in the slip and fall case, they might not know about coefficients of friction, but they know what happens when they slip on ice. Once the jurors can relate the subject to something they understand, it will be like an anchor (notice the analogy?) that will make them more secure in their understanding.
After days or weeks of trial, it is doubtful that jurors have waited until final arguments to make decisions. Each aspect of the trial carries with it the potential of winning or losing; convincing or confusing; capturing attention or inducing inattention. Certainly, decisions have been made, but are they convinced yet? You’ll never know. But you do know that this is your last chance to influence the outcome. Each juror’s brain is going to be “listening.” The left brain’s instinct is to reject and the right brain has the power to force a paradigm shift when compelling logic overwhelms status quo complacency.
But, as discussed earlier, self-persuasion is the goal of the Devil’s advocate technique. Therefore, the challenge for trial lawyers is to resist the urge to tell the jury what the evidence proved. Questions may be the key to self-persuasion. Rather than telling the jury what the witnesses said, consider gesturing toward the witness stand and asking, “Do you recall when Dr. Jones explained the rule that when a surgeon is going to operate on a child, he must first make sure that he is cutting in the right place, because not doing so might cost the child his life?” The jurors will access the memory because they need to answer the question. If this is followed by displaying the transcript, the memory is confirmed, thus immunizing against rejection.
The beauty of “Devil’s advocate” questions is that you don’t have to provide the answer or even refer to evidence. What if the defense brought an expert from far away? An intriguing question can activate the left brain’s structural skepticism. Examples:
- Why do you suppose that with all of the radiologists practicing in California, the defendant had to bring one all the way from Alabama?
[Pause while the jurors think about the answer]
- Could it be that no self-respecting California radiologist would support the defendant’s interpretation of the MRI?
- You’ll recall that the defendant nursing home didn’t call any witnesses to testify about training that they received on how to monitor a patient’s hydration status. Why do you think that is?
Reactance is what happens when the advocate’s statement makes listeners feel as though their freedom of choice is threatened. Final argument should avoid words like “you need to,” “you must,” or “you should” that ignite this phenomenon. Better results are obtained by using words connoting choice, such as “possibly,” “perhaps,” “maybe” and “you might consider.”
Appeals to self-interest and community safety are discussed by David Ball and Don Keenan in their book, “Reptile.” The premise is that a threat to safety generates fear for one’s own survival. Studies have shown that a fear message is most effective when a solution to an apparent threat can be achieved. The use of questions can be effective in presenting a threat to safety that can be remedied. For example:
- “Doesn’t a carpenter measure twice, and cut once? Should surgeons be held to a lesser standard? Is this the standard that should be acceptable for our community; for our neighbors?”
By motivating jurors to arrive at their own conclusions, you can avoid message-rejection reactance and benefit from self-persuasion.
The brain is wary of new and unfamiliar information. It is designed to maintain the status quo, reject perceived threats to freedom of choice, and seek simplicity over complexity. This article has explored methods of persuasion that are compatible with how the brain accepts information and makes decisions. Devil’s advocate persuasion is designed to address the need of every juror to be satisfied that he or she understood the evidence and arrived at a logical conclusion, independent of unwanted influence from a lawyer. Accordingly, persuasion may be most effective when it does not seem that you have been doing so. That is the art of persuasion.
John P. Blumberg has been practicing for 40 years, specializing in medical and legal malpractice cases. He is AV-rated, Board-Certified as a Trial Lawyer by the National Board of Trial Advocacy, Board-Certified separately in Medical Malpractice and Legal Malpractice by the American Board of Professional Liability Attorneys, and a Certified Specialist in Legal Malpractice by the California State Bar, Board of Legal Specialization. He was accepted into ABOTA in1991 and has earned the rank of Advocate with over 50 jury trials to verdict. Mr. Blumberg currently serves on the Board of Governors of the Consumer Attorneys Association of Los Angeles and the Board of Governors of the American Board of Professional Liability Attorneys. Blumberg Law Corporation is located in Long Beach.
by the author.
For reprint permission, contact the publisher: Advocate Magazine