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Take a look at the picture. See the duck (looking to the left)? Now, see the rabbit (looking to the right)? Now try to see them both at the same time. If you’re like most people, you can’t. Instead of seeing an image that is simultaneously a duck and a rabbit, your perception flips back and forth: now the rabbit, now the duck, but never both at the same time. The image is what they call “multi-stable,” or capable of having different but mutually-exclusive perceptions. Based on some new research (Jacks, et al., 2013), the ability of a persuasive target to respond with analysis or empathy works the same way. You can engage your analytic side, or you can switch gears and engage your empathic side, but engaging both at the same time, to use the lead author’s example, is as hard as simultaneously seeing both the rabbit and the duck.
As described in a recent EurekAlert, the study by researchers at Case Western Reserve University used advanced fMRI brain imaging technology in order to demonstrate that engaging the brain’s social network, allowing us to empathize, serves to disengage or suppress the analytical network, and vice versa. The brain itself appears to be multi-stable, in other words, in the sense that there is a hard-wired constraint on engaging empathy and analysis at the same time. This finding has some important implications for the ways we view persuasion in settings like the law, where advocates are frequently hoping to draw both from an audience. While participants are able to switch back and forth, much like we see either the duck or the rabbit, we aren’t able to simultaneously engage. What that means for legal persuaders is that they should aim, not to target both empathy and analysis, but to engage them each in sequence.
The Study: The Social Network Shuts Down the Analytic Network (and Vice Versa)
The ideal audience for persuasion would be a perfectly balanced person: someone capable of “feeling for” your position and logically accepting it at the same time. Unfortunately, it seems that we can’t have both, at least not at the same time. That is because the neural networks allowing us to appreciate something in human terms seem to be incompatible with the networks that allow a more analytical conclusion.
In the study (Jacks, et al., 2013), forty-five university students each took several turns in a magnetic resonance imager while researchers presented them with written or video-recorded problems that required them to apply a social awareness (thinking about how others would feel) or an analytic understanding (thinking about physics). The results demonstrated that the research participants were able to switch back and forth, engaging the appropriate network for each kind of problem. But when one pathway was engaged, the other was repressed. “This tells us that it’s the structure of the adult brain that is driving this,” the lead author Anthony Jacks told EurekAlert.”It’s a physiological constraint on cognition.”
This has practical implications beyond the ways we understand the brain. It tells persuaders this: You ought to keep both networks in mind, while also being conscious of which you are targeting and when. “You’ll never get by without both networks,” Dr. Jack goes on to say. “You don’t want to favor one, but cycle efficiently between them and employ the right network at the right time.” For litigators, that means you need a message that is in some ways bifurcated. Because successful persuaders in court often have the task of persuading those who are likely to be the tougher audience (e.g., winning plaintiffs generally have to persuade at least a couple of naturally pro-defense types), this two-stage model carries some important lessons for what should get your first emphasis.
For Plaintiff: Analyze Then Empathize
The traditional, and now dated, way that plaintiffs have tried to reach jurors is through the heart. They would start by “humanizing” their clients in order to build identification and empathy for their injured or otherwise wronged party. I say that this approach is now dated because the modern experience — due in no small part to the efforts of tort reformers — is that such an approach just invites resistance, confirms jurors’ worst expectations, and tells the jury that the lawyer is trying to manipulate them with sympathy. The Case Western study might also shine light on the reasons jurors are suspicious of the sympathetic route. If engaging on a social level means disengaging on an analytical level, then jurors may rightly fear that the empathetic approach is drawing them away from the facts, logic, and law that they’re being asked to apply.
Instead of placing clients front and center in the case story, the modern approach is to focus on the defendant, instead, for at least the first half of the opening statement and the case. The first task for strategic plaintiffs is to convince the fact finder that you aren’t neatly fit into the mold of what they expect “plaintiffs” to be, and you aren’t asking them for an emotion-driven decision. Instead, start by building an analytical and logical case against the defendant. After that case is made, then they’ll be ready to hear about the humanity of your clients and to empathize with their situation.
For Defense: Empathize Then Analyze
Many defendants take a tack that’s opposite the old-fashioned plaintiff’s approach. They place the logical and the analytic case front and center and try to avoid emotion altogether. If the case is to be won on a logical defense, they reason, then empathy is a weakness. But what that analysis leaves out is the reality that defendants also have to face a tougher audience and need to convince at least a couple of pro-plaintiff types who might be leading with their heart and not their head. Or, more broadly, they need to win back a little of the credibility that plaintiff’s opening and case might have taken away.
In order to address these needs, the defendant ought to start out by engaging that social network: empathizing with the plaintiff, or perhaps the jury, and providing at least some information that humanizes the client. Starting out that way can end up surprising the panel, and, in the case of a corporate defendant, it serves to provide a good alternative to the faceless entity jurors might expect. Once that empathetic part of the brain has been engaged and satisfied, then it is time for the defense to switch into the logical mode and lay the more solid foundation of all the analytic reasons against liability, cause, and damages. In that way, the defense ends on their stronger and more natural turf.
In a recent post, I focused on the different routes in framing your case in moral or practical terms. The research covered in that post also showed a surprising tendency for people to shift easily from one mode of thinking to another when making an evaluation. Using some examples, I illustrated the ways a products plaintiff might emphasize a moral frame while a defendant could promote a more practical frame. A critical supplement to that advice, however, is that both plaintiffs and defendants will often need to argue not just on their own ground but on the opposing ground as well: Plaintiffs may need to make a practical case as much as defendants need to make a moral case. The takeaway from that research, as well as the Case Western study (Jacks, et al., 2013), is that advocates need to address an audience of “flip-floppers,” to coin a political phrase, and persuade in a way that sees the rabbit and the duck each in turn.
About the Author
Dr. Ken Broda-Bahm
has provided research and strategic advice on several hundred cases across the country for the past 16 years, applying a doctorate in communication emphasizing the areas of legal persuasion and rhetoric. As a tenured Associate Professor of Communication Studies, Dr. Broda-Bahm has taught courses including legal communication, argumentation, persuasion, and research methods. He has trained and consulted in 19 countries around the world and is Past President of the American Society of Trial Consultants.
This article was posted on November 12, 2012.