In the world of public opinion plaintiffs and their lawyers are losing badly. Untold millions have been spent to change public views about plaintiff lawyers and damage cases. Giant industrial concerns, insurance companies, the health care industry have joined the Chamber of Commerce in spending millions of dollars to produce a prejudiced jury pool. As jury consultant Amy Singer has pointed out, this powerful force is like the radio program of the past The Shadow who possessed the mysterious power to “Cloud men’s mind’s” You can’t escape television, radio, newspapers and magazine messages about juries being out of control and the greed of their lawyers.
But, tort reform bias is not the only thing plaintiff trial lawyers need to contend with. There is a new awareness of how people make decisions. All of us in the legal field are involved, in one way or another, with communication and persuasion. We need to be aware of the substantial research that has been developed in the last few years about what motivates people in their decisions and attitudes. The juror of today is not the juror of ten or twenty years ago and the client of today is not the same either. People don’t receive their information as it was received in past years. Jurors are not reading the newspaper and hard copy books as much as they are getting information from their computer and television. This kind of information is delivered pre-packaged. There is no need to think. The message does it for you. Plus, it comes with pictures and video. It is short, to the point and entertaining. Not only that, they have already been programed as to how a trial should work. Absolute proof is produced on CSI and similar programs. Cross examination takes two minutes and goes right to the issue. Jury arguments are two to three minutes and tell a complete story in that short time.
The marketing industry and political analysis have continued to have current research on how people think, make decisions and what motivates them to do what they do. Modern research, in this area, isn’t limited to focus studies and polling. It’s become much more sophisticated and includes functional magnetic resonance imaging (fMRI). By connecting to the brain of subjects while presenting information, researchers don’t have to ask the subject their reaction because they can see it for themselves. This kind of research has completely changed our long held ideas about how human beings think and decide.
There are a number of books that are not legal texts but which would help our understanding of the way the human mind works especially in the area of decision making. There are books that describe the latest technique for studying decision making. Here are a few:
The social Animal by David Brooks explores the research of how people think and decide. It is both entertaining and informative. The one message that the book makes clear is that the great majority of decisions are made at an unconscious level and then ratified by our conscious intellect.
The book Made to Stick by Dan and Chip Heath discusses six principles of a compelling message. The book says they include (1) Strip your ideas to the core. Not sound bites, but proverbs. Statements that are both simple as well as profound (2) Unexpectedness that grabs attention helps convey the message (3) Concreteness means making things clear. Ambiguity is the enemy of communication. We remember concrete information (4) Credibility is essential for good communication. We all know how essential it is for the lawyer to have credibility (5) Emotions involve feelings and feelings are a powerful tool. Most of our decision making involves an emotional reaction and (6) Stories are the way humans have always communicated. Telling a compelling story is powerful way to communicate.
Martin Lindstrom’s book Buyology describes the way the marketing industry now researches how people think, decide and are persuaded. The books points out that instead of polling and surveys, modern marketing uses neuromarketing that is functional magnetic resonance imaging or fMRI. Subjects are connected to the fMRI machine and while they respond to questions or images, scientist look at the brain to see exactly what is motivating the person. The book confirms the great majority of decisions are made at an unconscious level and not with the rational mind.
One of the classics in the area of sales and persuasion is Robert Cialdini’s book Influence: Science and Practice. This book outlines the fundamentals of what causes people to make decisions especially regarding purchases. The principle of reciprocity, which he describes, has so many applications to what we do as trial lawyers that each one would be helpful for us to know and use.
Certainly one should be familiar with Frank Luntz who has worked for the Republican Party as their resource person on things like framing issues and outlines for Republican speakers on issues. His book Words that Work is an excellent resource for words and phrases that carry a subconscious message to the American public.
The Political Mind by George Lakoff is one of several books by Lakoff which lawyers should be familiar with. Lakhoff describes how we make decisions at a subconscious level and why people decide as they do.