In the case of any argument or persuasive appeal you are making, you can ask the question, “Who are you aiming at?” In a jury trial, your answer might be, “The jury, of course.” But who on that jury are you aiming at in particular? In our consulting, we have long advised our clients to target most of their appeals at those you expect to be the tougher audience. In a corporate defense, for example, if you can find a way to sway those who are prone to distrust large companies, then you stand a much better chance of winning over your jury. This focus on the more difficult target can be challenging in practice. It is comfortable to speak to supporters, for example, “preaching to the choir.”
The academic term for this mistake of talking to the wrong audience is “persuasive misalignment,” or an incompatibility between target audience and target message. One recent example of research on this relates to public health messaging regarding the coronavirus pandemic. The researchers (Bechler & Tormala, 2021) focused on the tendency to target those with negative attitudes toward a given behavior (like mask wearing). Over the course of three experiments, they showed that the greatest attitude change comes from shifting the target to those who are slightly (but not fully) positive toward it. The advantages of re-targeting apply to litigation, as well. In this post, I will share some thoughts on persuasive realignment as they apply to three phases of litigation and trial.
Align Your Targets in Pretrial Research
Pretrial research — focus groups or mock trials — can offer effective ways to assess your case and hone your message. But research design matters. For example, when you are recruiting participants for your research project, you clearly want to try to match the venue. But my own view is that, when looking at the demographics and the attitudes of those you select, you want to create a realistic worst-case version of what you could face in trial. You will learn more from seeing how your case fares under that kind of challenge.
Align Your Targets in Voir Dire
The concept of ‘triage’ applies not only to medicine, but to voir dire as well. There is usually a ‘good’ group, composed of those who you feel are better for your case, and you don’t want to focus on that group too much for fear of exposing them to the other side’s challenges or strikes. Then there is a ‘bad’ group that you know or suspect are higher risk, and you don’t want to give them too much of a soapbox. In between these two, are those you really want to focus on: Those who you need to find out more about in order to decide where to use your strikes. For your credibility and rapport, you will want to speak to everyone, but your attention and your most strategic questions need to focus on that group.
Align Your Targets in Trial Communication
Once you are addressing the empaneled jury, naturally you are talking to all of them. That is essential, because in many venues you need to convince a unanimity. Still, your practical focus is going to center on some jurors rather than others. The likely jury leaders, for example, should be a big part of your thinking. It is also likely, as you analyze your panel, that you will recognize some as likely swing voters, those who could go either way. For the leaders and the swing jurors, keep them in the center of your focus. Learn about them, think of them as you craft your arguments, and look at them as you talk to them.
In all phases, the important point is to think about your target.
Bechler, C. J., & Tormala, Z. L. (2021). Misdirecting Persuasive Efforts during the COVID-19 Pandemic: The Targets People Choose May Not Be the Most Likely to Change. Journal of the Association for Consumer Research, 6(1), 000-000.
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