“If you’re trying to persuade people to do something, or buy something, it seems to me you should use their language.”—David Ogilvy advertising expert

The Challenge of Current Attitudes

The fundamental factors involved in influencing jurors’ verdicts have remained the same over time. They primarily include: (1) juror’s backgrounds – their occupation, education, socio-economic status etc. (2) juror’s past significant experiences that influence their thinking and (3) jurors strong values, opinions and beliefs. Also constant over time are the importance of juror leadership characteristics and group dynamics. However, while the process of human decision making hasn’t changed, national political and economic culture has changed. These changed cultural factors, including the impact of the effects of the worldwide pandemic, influence both conscious and unconscious decision making by jurors. In today’s culture it is important to realize it’s not what you say, but how you say it, that counts.

We have learned that facts aren’t enough to change people’s minds. That is particularly true in today’s current environment. For example, many issues on which liberals and conservatives have political disagreement about depend upon questions of fact, however, the two groups tend to stubbornly maintain their views irrespective of the facts. A common explanation for this is known as “confirmation bias” – the psychological tendency to accept information that confirms already accepted beliefs and reject any information in conflict. As a result, despite the facts, people stay entrenched and polarized in their views. We know that a juror tends to listen to and believe information that is consistent with what they already feel as normal based on his or her life experiences, and to discount information that does not match that experience. Research shows that information that is consistent with one’s beliefs is processed quickly and remembered better than inconsistent information. Understanding how to deal with this reality is essential for persuasion.

The Fundamentals of Persuasion

How should we approach the problem of persuading jurors? Certainly, the established principles of persuasion apply even in this current day situation. We also know persuasion is not manipulation. Persuasion involves getting people to do things that they see as being in their own best interest and which is something that want to do. The other rules of persuasion, including sincerity, simplicity and story telling apply as well. As does the essential need of emotion and calmness along with being trustworthy. But, something more than these basic skills is required for successful persuasion.

Moral Reframing

One effective additional skill involves the technique of moral reframing. This idea is based upon the fact that persuasion is rooted in empathy: That is, if you want to change someone’s mind you need to approach it from an understanding of their values rather than your own and present it in that format. For example in business, everyone knows that if you want to persuade people to make a deal with you, you must focus on what they value, not what you value. If you’re trying to sell your car, you emphasize the features of the sale that appeal to the buyer and reasonable price of the vehicle and not what appeals to you.

Research in framing done by Nobel Prize Winner Daniel Kahneman and his collaborator Amos Tversky in the 1980s showed the assumption that humans behave rationally in making decisions is simply untrue. Instead humans often decide irrationally, relying on several mental shortcuts to speed up reasoning., That fact makes us remarkably sensitive to the way things are framed or expressed.

Studies have found that when asked to spontaneously create moral arguments, we tend to choose those that are grounded in our own moral values, not the moral values of our target audience. That’s why it is so hard to convert someone’s view of issues because we tend to present arguments from our moral or ethical view rather than that of the other person. On the other hand, converting the approach to “reframed messages” are successful if they resonate with deeply held moral values of the other person.
Stanford University sociologist Robb Willer and Matthew Fienberg have conducted studies about the power of framing ideas in ways that are consistent with the other persons moral views. They have extensively studied how liberals and conservatives can convert people from the other side to their way of seeing things. One reason this is so hard to do, they explain, is that both liberals and conservatives typically craft arguments based on their own moral convictions rather than the convictions of the people they target for persuasion. As a result, these moral arguments tend to be unpersuasive, even offensive, to their recipients

The Technique for Moral Reframing

How should you go about moral reframing? In a talk “Reframing to Move People from Resistance to Support” expert Steve Levin lists the following as fundamental steps in moral reframing issues.
Listen to the objection: Listen more deeply. Reframing hinges on deeper listening, connecting on values and finding a better frame for productive collaboration Through deep listening to someone’s objection, we will not only really hear what they are saying, but we will also discover the core values and beliefs that drive their perspective. Listen for insight to questions like how might you respond? What values are driving the other person’s views?

Put Yourself in Someone Else’s Shoes. When presented with a problem, most people will pare down their options based on what they believe are their strengths. Instead think about how a different person would approach the problem at hand. To do it, you must get into the heads of the people you’d like to persuade, think about what they care about and make arguments that embrace their principles. If you can do that, it will show that you view those with whom you disagree not as enemies, but as people whose values are worth your consideration.
Affirm their values: Agree with the other person’s values where you can. There is always somewhere that we can find common ground and shared values.
Offer a new way of viewing the issue: Find a different viewpoint consistent with the value. Using this newly identified shared values, you can reframe the problem in a way that shows how this new viewpoint agrees with their views and beliefs. Approach the issue as a question you need to solve together. You are not telling them what to do but exploring with them what is possible different viewpoint being examined in a creative and imaginative way.
Respond: Respond with the new frame. Discuss it with mutual respect as an attempt to find solutions together.

Liberal vs Conservative Values Generally

Research by Jonathan Haidt, a social psychologist from the University of Virginia, provides insight into basic differences between liberals and conservatives generally. Conservatives see the self-sufficient individual as necessary for the continuation of our country and its institutions, while liberals are most concerned with issues of care and fairness.

Haidt’s studies also show that, compared to conservatives, liberals are more concerned with moral issues involving harm and fairness which are issues involved in jurors’ evaluation of personal injury cases. In contrast, conservatives view morality through the prisms of authority and sanctity while moral issues involving fairness versus harm are less important to these jurors. These differences explain why liberals focus more on issues involving justice and compensating plaintiffs while conservatives are more persuaded by messages that center on authority, rules and protecting vital institutions. It also explains why liberals and conservatives have different views about the amount of damages to award in personal injury cases.

Haidt also defines moral people as those who subordinate their own personal interests to the greater good of society. He says conservatives believe this morality stems from personally working hard, by contributing through their hard work and asking little in return. They see people who work hard as the ones who pay to operate our government and keep this country running. Liberals see morality as using common resources to take care of the less fortunate. The moral people on both sides believe that they are subordinating their personal interest to the common good.

Conservatives are often very religious and patriotic. They have a deep sense of loyalty and respect for authority. The institution of the family and its connection to sanctity make conservatives anti- abortion, anti-women’s rights and anti- homosexuality, feeling that the individual interest must be sacrificed for betterment of the tribe.

It is hard for a liberal see things from a conservative point of view but if we don’t, we will be ineffective in court. Consider how we present our case issues to a conservative juror. We tend to make our client the issue. Instead try to morally reframe reasons why the result you want is good for society. How does our argument fit with accepted Christian religious principles? What are the benefits to Society, the public (institutions) from the verdict you want? Other illustrations of morally reframing issues consistent with a conservative’s values might include:

1. The rule should be that the person causing the accident should be responsible. (Authority)
2. Holding people accountable for accidents encourages responsibility. (Authority)
3. Enforcing the rules such as traffic laws maintains order, predictability and avoids chaos. (Authority)
4. By requiring the party at fault to accept responsibility for their actions it takes the burden to cover the loss off society. (Authority)
5. The Bible, particularly the Old Testament requires that people be financially responsible if they cause monetary loss to another. (Sanctity)
6. Our entire system breaks down if people aren’t held accountable for their actions. (Authority)
7. Our system of justice is what separates us from third world countries where people can injure each other without accountability. (Loyalty)
8. Rules and laws were created for a reason. If they aren’t enforced, they might as well be erased from the books. (Authority)
9. By helping someone out, in a one-time situation, we help them continue as a productive and contributing member of society. (Loyalty)
10. Regulations on the rest of us. We must hold the wrong doer accountable or we make life more complicated for the rest of us. (Liberty)

Conclusion

Most of us were taught in law school the importance of arguing our case by employing facts as well as logical and rational reasoning. We now know that attempts to persuade others or to change their strong views relying only on facts and rational reasoning is not the most successful approach. Research has shown the significant role of our subconscious mind and already existing values in making decisions or forming opinions. As a result we have learned what we say is not as important as how we say it. Employing moral reframing often makes the difference between persuading and not persuading.