By Dr. Ken Broda Bahm:
Earlier this week at a mock trial, I witnessed a face-off between two jurors with very different views about the same insurance case: “The company wasn’t fair,” cried one, “to this day they haven’t stepped up to do the right thing.” But the other juror was unmoved: “The policy is what it is, there’s no benefit to them going beyond it.” It is tempting to see this as an exchange between two types of people. But more accurately, it is a conflict between people who happen to apply two different frames around the situation. The first juror is applying a moral frame, looking through the perspective of fairness and right versus wrong. The second juror is just looking at the pragmatics of the situation, and what the policy calls for quite independent of what is good or bad. While you might think the die is cast on which type of discussion will prevail as of jury selection, much depends on the message they hear in trial.
The critical lesson is this: Frames can change, even within a single individual. Based on a recent study (Van Bavel et al., 2012), people appear to be very malleable and able to selectively apply either a pragmatic or a moral frame, and are able to rapidly switch between the two, even when evaluating the same or similar activities. To determine how the frame of evaluation impacts the way participants viewed the same stimuli, the researchers presented a number of concepts (e.g., murder, honesty, eating, or riding a bike), and asked for ratings on the moral grounds of whether they are right or wrong, or on the pragmatic grounds of whether they are personally beneficial or harmful. The team found not only that participants were able to easily switch between the different frames for all kinds of activities. They also found that the choice of frame matters: Moral judgments tended to be quicker, more extreme, and more universalized in the sense of applying to everyone. So the choice of frame matters, and if it is changeable, then the promotion of a particular frame is a key part of the message.
What’s in a Frame?
I get it that lawyers’ eyes can sometimes glaze over when we social science types slip into our lingo. Our thoughts on perceptions, framing, and moral judgments might sound fairly remote from the concrete needs of applying the facts to the law in a specific case. But the more we learn about the process of decision making, the more we are able to control the message elements that influence that process.
So, moving from theory to practice, how would a litigator adapt to the malleability of a juror’s frame? Well, since moral judgments tend to be quicker (more impulse driven), more extreme, and more universally applied to everyone, and pragmatic judgments are more deliberative, modest, and situational, then it is easy to see that in most (but not all) cases, plaintiffs would want to suggest a moral frame while defendants would want a pragmatic frame. So how would each advocate cultivate that chosen frame?
Devoting the rest of this post to a couple of examples, let’s use a fictional civil tort fact pattern that we’ve used before: A young baseball pitcher injured by a ball hit from a highly-engineered aluminum alloy bat. The Plaintiff (we’ll call him Jason Jackson) claims that the bat manufacturer (let’s call them Newland Company) purposefully created a bat that tricked the regulatory tests and hit the ball faster than allowed, depriving the plaintiff of a proper reaction time. The plaintiff would want jurors in the moral frame of broadly righting a wrong. The defendant would want jurors in the pragmatic frame of just answering a situationally specific and limited question. Let’s see how each might go about that in opening statement. The key words suggesting a frame are bolded in the examples below.
Illustration: The Plaintiff’s Moral Frame
There is a moral to this story. Beyond the family tragedy at the heart of this case — a 16-year-old boy who is brain injured for life — there is a company’s careless and dangerous choice. Newland had the right path right in front of them: go ahead and comply with the standards that are meant to keep the game as safe as possible. But instead, Newland chose the wrong path: trick the test in order to produce and market a bat capable of hitting the ball at a speed that deprives the pitcher of a reaction time. The ethical and responsible thing for the company to have done would have been to say, ‘We don’t want and don’t need that kind of unfair advantage in the market, and it is not right for our business to put players in greater danger.’ In other words, the company could have followed their values instead of following their profits.
Illustration: The Defendant’s Pragmatic Frame
As you’ve heard, there is a lot of emotion in this case. But there is also a single, simple, and pragmatic question: What would have prevented this tragedy? As an investigator, your job is to focus on that. So let’s think about it and look at what is realistic: ‘What if the player used a different bat?’ You’ll hear from several very reasonable experts — including the Plaintiffs’ expert — that any bat is capable of hitting a ball at a speed that could be too fast for the pitcher to react. That is what the science, the physics, and the facts will tell you. And let’s look at the standard: ‘What if Newland had tested differently?’ You’ll see with your own eyes that Newland applied the test in exactly the same manner as every other company. There would have been no benefit to doing it any differently. And finally, let’s ask the bottom line question: ‘What would have kept Jason safe?’ The only logical answer is, ‘Staying off the baseball field.’ That is the reality: There are just inherent dangers to the game.
Viewed this way, any case can be seen as a kind of “frame war.” Based on the study’s (Van Bavel et al., 2012) findings, a single juror could easily apply one frame or the other, so advocates need to gear their message to that battle. Of course, one paragraph will never succeed in setting or altering a juror’s frame of reference. But applied consistently throughout opening, presentation of evidence, and closing, the language you choose plays a critical role in influencing the filter through which the jury sees your case story.
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Other Posts on Storytelling:
Find the “Universal Morality” in Your Case Story
Your Opening: Tell It Like a Story, but Tailor It Like a Strategy
Don’t Put “Story” on Too High a Pedestal
Take a Lesson from the Casey Anthony Verdict: It Is the Story, and Not Just the Evidence
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Van Bavel JJ, Packer DJ, Haas IJ, & Cunningham WA (2012). The Importance of Moral Construal: Moral versus Non-Moral Construal Elicits Faster, More Extreme, Universal Evaluations of the Same Actions. PloS one, 7 (11) PMID: 23209557
Photo Credit: m.prinke, Flickr Creative Commons (“Rahmen ohne Bild,” sculpture in the Westpark/Braunschweig)