I recently participated in an American Association of Justice webinar with Mark Mandell, Danielle Mason, Judy Livingston and Ben Rubinowitz on the subject of case framing. Here are some take aways on the general subject.
COMMUNICATION THEMES IN MARKETING AND POLITICS
Case framing refers to the finding that how we describe an issue or event influences our interpretation and understanding. Framing research shows that how something is presented to the listener can influence their reaction and interpretation they make about it. In the area of current events and politics it essentially refers to creating word guidelines that influence how people perceive a topic or an issue.
The importance of the choice of words used in describing an issue, thing or event has been studied since the dawn of politics and marketing. Some of the more well-known researchers include David Ogilvy. He was arguably the advertising genius of the 20th Century. He opened the doors of his advertising agency Ogilvy & Mather in 1948. He was the author of books on advertising in which he outlined the importance of how sales are impacted by the words used to describe the product or inspire buying. His advice about “framing” included such ideas as
(1) if you want people to buy your product, you must explain it as briefly and simply as possible
(2) Talk to people in the language they use every day and
(3) eight out of ten people only read the headline. It should telegraph what you want to say in simple language.
Cloitare Rapaille.was born in France where he received a PhD in Social Psychology from Paris-Sorbonne University. He immigrated to the U.S. in the early 1980’s. He is known for his books and advice to politicians and advertisers on persuasion. His most famous book is: The Culture Code. In it, he says that buying decisions are strongly influenced by the reptilian brain, which is made up of the brain stem and the cerebellum. He says research shows the primitive brain is only accessible by the subconscious. It the reptilian brain is the home of our basic instincts: survival and reproduction. The primitive brain prevails over the rational. This was the basis of his advice to business about how to sell their product. His research of products resulted in advice about how to describe and present the product to successfully sell it to consumers. He is known for advising advertisers on how to influence people’s unconscious decision making through correct framing.
Frank Luntz is an expert who is an advisor to industry and the Republican party on how to properly frame products and issues to persuade. His book Words that Work, supports his advice: that “It’s not what you say, it’s what people hear” that motivates opinions. His research indicates: “we decide based on how people look; we decide based on how people sound; we decide based on how people are dressed. They decide based on their passion. 80% of our life is emotion and only 20% is intellect. Luntz says:
“ I am much more interested in how you feel than how you think. I can change how you think, but how you feel is something deeper and stronger and it’s something that’s inside of you. How you think on the outside, how you feel is on the inside, so that’s what I need to understand. It’s all emotion. But there is nothing wrong with emotion. When we are in love, we are not rational; we are emotional. Emotion is good; words are the key to emotions. My job is to look for the words that trigger the emotion. Words with emotion can change destiny, can change life as we know it. We know it has changed history; we know it has changed behavior; we know they can start a war or stop it. We know that words and emotions together are the most part awful force known to mankind.”
George P. Lakoff is an American cognitive linguist and professor of linguistics at the University of California, Berkeley in 1972. He is the author of several books on linguistics. One of his best known is: Don’t Think of an Elephant! He says: “When I teach the study of framing at Berkeley, the first thing I do is I give my students an exercise. The exercise is: Don’t think of an elephant! Whatever you do, do not think of an elephant. I’ve never found a student who is able to do this.
Daniel Kahneman is an economist and psychologist noted for his work in the psychology of judgment and decision making for which he was a 2002 Nobel Prize. He is the author of many books including his 2011 book Thinking Fast and Slow. The book identifies two systems of thinking – intuition and slow thinking. He established that the way a choice is framed shapes how it is perceived and whether it will be acted on. He reports that research has established If you frame scenarios certain ways, you can become more persuasive—both when speaking to others and when trying to motivate yourself frames”
Kahneman’s findings inspired scientists to conduct further research into framing. Their studies discovered that framing affects decisions, even those presumed unlikely to be swayed. For example, frames have been shown to increase receptiveness to a political message, affect how much energy homeowners consume and even determine whether people donate their organs. In addition, it was found that positive-outcome frames more persuasive than loss aversion framing. Research across numerous scientific disciplines has shown that our brains don’t like to lose something. In fact, when neuroscientists evaluated how our brains perceive losses, they discovered loses have twice the emotional impact of equivalent gains. If you are trying to convince someone of something, sharing a frame that deals with loss aversion is good but will rarely nudge them to embrace your perspective. To do that you’ll need to share a second frame focused on positive outcomes.
Research in education, communications, psychology, anthropology and cognitive science has given a scientific basis to what good storytellers and trial lawyers already know: Themes are critical for helping an audience organize the information they receive and make decisions based on that information. Themes should be the basis of framing issues in your case. For example, “profits over safety” is a theme but also can be the basis of framing a negligence claim in the case. How we say something is more important than what we say.
To persuade a jury, an attorney must develop case themes that help organize the diverse case facts and convey the case theory. Developing persuasive and powerful case themes can be aided by trial consultants who understand themes already circulating in that community and in the general culture that relate to the trial issues. Susan Farina in her article “Developing a Trial Theme That Sticks” Vol. 27, No. 6, The Best Articles Published by the ABA (SEPTEMBER 2010) has provided good advice. She says a compelling theme should be the backbone of every trial strategy. A trial theme allows for the presentation of evidence in a manner designed to educate and, ultimately, help persuade a jury to determine facts in a client’s favor. Themes have the ability of reaching immediate, unconscious conclusions that influence behavior.
She says a trial lawyer must strive to capture the juror’s attention and leave an impression that lasts long after the jury instructions have been given and the deliberations have begun. To be effective, the lawyer must present the evidence, testimony and version of the story by way of the opening statement and closing argument correctly. It should be presented in a logical and comprehensive manner. It should allow the jury to process and make sense of it. If the lawyer does not present a logical and believable story of what happened, the jurors will come up with an explanation of their own.
Farina says jurors in a personal injury case are looking for an answer to three basic questions:
- What is this case all about? (i.e., Who got hurt? How?)
- Why did it happen? (e.g., Negligent driving, Defective product, Medical malpractice, etc.)
- Why are we here? (Liability.)
A story must have a theory and a theme. The trial theory answers the three questions in your client’s favor. Without a theory, no one will listen; without a theme no one will stay awake. An examination of what a person remembers as being great stories illustrates the importance of theory and theme.
Mark Mandell, who has written extensively about case framing and themes, suggests that these are some effective examples of case frames or themes:
Do Your Job Do Your Job is a Case Frame that can be applied in virtually all cases. If the defendant had just done her job, the plaintiff would not have been harmed.
Betrayal Betrayal elicits a deep, visceral reaction. It causes indescribable pain. No one wants to feel the anguish that accompanies betrayal. Virtually everyone has experienced some form of betrayal or at least believes they have. It is a powerful case frame because it strikes a responsive chord inside everyone.
Cover Up Deceitfully attempting to hide wrongdoing can be as upsetting as the wrongdoing itself, if not more so. Covering up wrongdoing can make the wrongdoing seem worse than it was. It has the effect of staining the wrongdoer’s character.
Profits Over Safety Profits over safety is a strong Case Frame. It can very effectively explain why and how a Defendant’s wrongdoing has led to harm.
Furthermore, it is well established that virtually all decision-making occurs at a subconscious level. Once a decision is made subconsciously, the conscious brain creates a reason for it. That’s true even though they don’t realize the decision was made at a subconscious level. Thew reason is that people always need a rational reason for their decisions, and they will create one. In addition, it is well established that emotion is involved in every decision we make. In his book How We Decide Jonah Lehrer points out that since Plato, philosophers have described decision making as rational, but our decisions are in fact a blend of emotion and reason which take place subconsciously.
fMRI studies and research has clearly established that opinions are formed, and decisions made largely at a subconscious level involving an emotional component. In trials, it is the compelling underlying issues in the case coupled with jurors deeply held values, existing bias, emotional impression with their significant past experiences that determine their conclusions or opinions.
A significant underlying issue in a case which the juror sees as having a personal impact upon them alerts the primitive brain to self-interest survival reactions. The subconscious question jurors asked themselves, without being really conscious of doing so, is: “how does this impact me, my family or our community personally? The primitive brain’s automatic reaction to any perceived threats of survivorship operates at a subconscious level as self-protection. It results in the conscious mind arriving at conclusions dictated by the subconscious that protects the person and those within “their tribe” including family and community.
In addition, it well established that emotion is involved in all decision making. In fact, without emotion a decision is not possible no matter what the judge tells the jury about emotion. There is also the futile instruction by the judge to the jury to disregard evidence they have heard or relying upon the juror’s assurances they can set aside an opinion or bias they have and “apply the law.” In an article why do We Ask Jurors to Promise That They Will Do the Impossible? Published in the National Jury Project, Susan Macpherson says jurors could not, even if they tried following these instructions because they are incapable of doing so. The idea that they could is “based upon fundamentally flawed and outdated assumptions about how the brain processes information and how jurors make decisions”
We need to recognize that people will always follow their important value systems even when it is contrary to their own self interests. In addition, they will interpret evidence through their significant past life experiences which they utilize to make sense out of the case and arrive at an opinion. Trials are therefore not about logic or rational analysis. The most important factor in understanding jury decision making is that trials are about impressions influenced by our values and past experiences as well as our primitive brain motivators all occurring unconsciously. They are not a process of logical evaluation of evidence presented objectively and without emotion. Further, this subconscious decision-making always has a self-centered component. This is involved in the function of the primitive brain. We know that the primitive brain “sleeps” until there is a threat of personal safety. When that occurs the primitive brain automatically goes into a defensive mode of self-protection and is concerned about survival. As a result, cases with substantial verdicts almost always involve an issue of self-protection, safety and prevention of injury, harm or damage potentially impacting the juror or his or her family.
Good trial lawyers apply these concepts to their trials.
THE POWER OF “THE RULE OF THREE“
Humans tend to think in threes and we see it in all kinds of instances. We tend to remember points best when given in groups of three, we scan visual elements best when they come in threes, and we like to have three options to consider. The rule of three can help you create better communication. Look how often things are grouped in three’s:
- Friends, Romans, Countrymen
- Stop, look and listen
- The three little pigs,
- The three blind mice,
- Goldilocks and the three bears,
- The three Musketeers,
- The three wise men
The rule of three provides that things that come in threes are inherently more effective than other numbers of things. The reader/audience to this form of text is also more likely to consume information if it is written in groups of threes. From slogans (“Go, fight, win!”) to films, many things are structured in threes.
A series of three is often used to create a progression in which the tension is created, then built up, and finally released. Similarly, adjectives are often grouped together in threes in order to emphasize an idea. It’s no accident that the number three is pervasive throughout some of our greatest stories, fairy tales and myths.
It’s also no coincidence that some of the most famous quotes from throughout history are structured in three parts. Take Winston Churchill’s most famous quote from World War II when he said: “I have nothing to offer except blood, sweat and tears.” This quote has been repeated hundreds of times since he said it in 1940. The trouble is, that’s not what he said. He actually said: ” I have nothing to offer but blood, toil, tears and sweat.” The impact of the rule of three is that his quote was heard and repeated as three items, not four and was restructured. It all comes down to the way we humans process information. We have become proficient at pattern recognition by necessity, and three is the smallest number of elements required to create a pattern. This combination of pattern and brevity results in memorable content.
In storytelling, the Rule of Three works due to the presence of the concise, memorable patterns. Using the Rule of Three allows you to express concepts more completely, emphasize your points, and increase the memorability of your message. Focusing your message on no more than three significant points, and repeating them in different ways throughout your presentation, is certain to give your presentation the maximum impact.
Our PowerPoint slides should have no more than three points per slide. We should emphasize no more than three primary claims of negligence. Our trial communication should observe the Rule of Three. Using The Rule of Three is powerful.