The study of attitudes and attitude change has a long tradition in social psychology. Related to attitude change is the concept of persuasion, the process by which attitude change occurs. In my role as a litigation/jury consultant, I assist attorneys become persuasive communicators, with the goal being to convince the jury, arbitrators, or judge to view the case facts in one way, to the exclusion of others. Many attorneys believe they are persuasive communicators when, in fact, they are not. Spending a lot of time talking does not mean one is good at it! When persuasion is attempted, the communicator must be perceived as highly credible. The communicator’s credibility has been studied by social psychologist since the 1950s. Given an identical message, a highly credible source will be more effective in eliciting attitude change than a source who lacks credibility. In order for a communicator to be credible, he or she must possess equal parts of expertise and trustworthiness. Absent one or the other, credibility will be lacking and the communicator will be unable to persuade anyone to change an attitude in the desired direction. Many attorneys have expertise, however, they lack trustworthiness. This isn’t to say they are bad people who cannot be trusted; trustworthiness in this context is the extent to which someone can be believed because they have no ulterior motives for endorsing an opinion. In that attorneys, as advocates for their client, have an ulterior motive in persuading the jury to return a favorable verdict, I work with the attorney to find ways to bolster their credibility by enhancing their overall trustworthiness. In addition to the communicator, persuasion also involves the communication itself. It is not as simple as an attorney presenting a well reasoned, eloquent case and hoping for the best outcome. For attitude change to occur, appeals to emotions, such as anger, fear, or feeling good, are often necessary. Finding out what works for a particular case requires research and refinement. An obvious factor that is surprisingly overlooked by many attorneys is comprehension. It is impossible to persuade a jury if they do not understand the message! One of my primary tasks in helping attorneys is preparing their arguments in easily understandable language, with persuasion being the ultimate goal. Generally speaking, an understanding of the social psychological factors that lead to persuasion is crucial for anyone whose job requires a decision favoring one side, to the exclusion of other, perhaps equally valid, positions.
Litigation is unique, when compared to other arenas where persuasion is important, such as advertising or marketing. With an advertising campaign, the ads, whether billboards, print media, social media, television, radio, or other formats, are often tested with focus groups, etc. And, once refined, the ad campaign is launched in a fashion where a wide net is cast to motivate as many people (customers/buyers) as possible, over a period of time – the ad campaign. Persuading people to become customers is as critical to business success as persuading people (jurors and judges) is to litgators. But, unlike advertising, attorneys do not have a wide net to cast, or a long time period to cast it. They have a market of 1 group of jurors, who will hear 1 set of facts, albeit from 2 perspectives, over a relatively short period of time, and only that 1 time. These jurors are the potential customers of the message. And because the trial attorney only gets 1 shot at the “market,” he or she must present the case in as persuasive way as possible. I often use this analogy with potential clients, especially if I have the opportunity to speak with the end clients, who often, are business people. Business people understand the need to get the message right, but they also sometimes have more of an opportunity to refine the message, or the way the message is delivered, over time. Trial lawyers do not have these luxuries and they must get it right, the first time, every time. This reality, to me, should be one of the motivations to conduct mock jury research. Like performing a musical recital or in a sport, practice is critical. It may not always make perfect, but it yields improvements in many ways. Too often we see attorneys who think they know what will persuade a mock jury only to have their “persuasive arguments” fall flat. These attorneys have often been working on the case so long that their perspective has evolved in a way that proves not to be persuasive. Because in many mock jury projects there is more than one opportunity to “argue” the case, learning and adjusting on the fly allows the attorney to practice the art of persuasion. Such repetitive sessions provide both a rehearsal effect and a data enhancement benefit. Being persuasive rarely happens on the fly, but rather, is the product of considerable work to be sure that the message transmitted is the message received.