Yes, you really should respond to that inane argument.

• By : Tracey Carpenter, Ph.D. & Susan Chiasson, Ph.D.
• October 20, 2015
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In any disagreement, it’s incredibly tempting to only respond to the arguments that you think are persuasive and simply dismiss those that you find absurd. Unfortunately, as can be easily seen in any political debate, that often leaves both sides talking past each other – and never actually addressing the other side’s concerns. Unless and until you actually address the opposing arguments directly – even those you think are ridiculous – you are simply “preaching to the choir.” And while it is important to provide ammunition to those who are on your side, ideally, you would like to persuade those who are on the fence or against you.

To highlight this issue, think about a political issue you feel strongly about. Now consider the opposing arguments on that issue. Do they actually address your concerns? Or do you feel they are missing the point entirely? Are you persuaded by arguments that don’t address your concerns?

This same dynamic surrounds practically every sensitive issue that people have a vested interest in. Consider vaccines, for example. Vaccine resisters believe that there are real and widespread risks of vaccines that outweigh the risks of childhood diseases. They fear that vaccines will cause permanent injuries and changes to their child. Vaccine advocates emphasize the seriousness of those childhood diseases and our social responsibility in protecting vulnerable populations who cannot be vaccinated. The advocates’ approach is typically to scoff at anti-vaxxers or to focus on educating them. However, their arguments are rarely persuasive to those who oppose vaccines, because they dismiss the fundamental force driving their position – fear of causing harm to their child – instead of addressing it.

In fact, studies designed to examine what arguments actually influence anti-vaxxers’ thoughts about vaccines have found that parents’ vivid and detailed descriptions of their child actually getting those diseases (measles, whooping cough, etc.) are most effective. This is likely because those personal accounts speak to the fear in vaccine resisters – and elevate their level of fear concerning childhood diseases to a point that balances out the scales a bit more.

Every time you go to trial, you are introducing new topics to jurors and asking them to become invested in the issues – which they do. But to create the greatest chance that they will become invested in your position, you can’t simply hope they think like you and will be persuaded by the same arguments you are persuaded by. You should consider that some jurors may have a different perspective – one that you would like to change. So next time you don’t want to bother addressing an opposing argument because “no one will ever believe that,” remind yourself that someone will. And he/she may be on your jury.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.

Using an analogy at trial is like…oh, just don’t do it.

• By : Tracey Carpenter, Ph.D. & Susan Chiasson, Ph.D.
• September 21, 2015
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When teachers want to explain a new concept to students, they often offer analogies: teaching fractions in terms of pieces of a pie or likening the brain to a computer for the body. Scientists rely on analogy to help themselves think: for example, Robert Boyle, the founder of modern chemistry, used analogy to conceptualize and explain “local motion,” the movement of invisible particles. Analogy, and its relatives the metaphor and the simile, is a powerful tool for explaining new and complex concepts and facts to a lay audience. It’s not surprising that lawyers turn to analogy in the courtroom to explain causation or complicated facts.

But using an analogy in the courtroom is like having a gun in your house: it can protect you, but a burglar could take it by stealth or force and use it against you. And that analogy highlights the problem with analogies. Analogies are never 100% fitted to the new situation, and that difference between analogy and situation, especially if the analogy makes use of a politically or emotionally charged example, can distract jurors and derail the discussion. The gun analogy likely caused most readers to react to that statement and thus, distracted them from our main point: be very cautious when using analogies.

You can see the distracting power of analogies in almost any conversation or discussion, including the example below. In our research on lay attitudes towards vaccinations, we analyzed reader responses to a blog post by Maria Konnikova, a writer for the New Yorker. Konnikova was writing about a study that explored the effectiveness of particular ways of communicating information about childhood vaccines to parents; the benefit of childhood vaccination was not up for discussion. In the course of her post, Konnikova made two analogies: one to the use and regulation of raw milk and another to Galileo as a pioneer in science. There were over 340 comments and of those, only a handful directly addressed the topic of the post, communicating with parents. Of the remaining comments,

1) 124 argued the pros and cons of childhood vaccines

2) 83 argued the pros and cons of raw milk

3) 46 commented on Galileo.

It’s tempting to want to explain complexity with an analogy, but “likeness is a most slippery tribe,” says the Stranger in Plato’s Sophist, and we agree. Whatever analogy you’re contemplating, we bet it can be turned inside out, and you can be sure the opposing attorneys will try their hardest to do so. And if they can’t, they can always fall back on dismissing it: “Opposing counsel likened this X to a Y, which is totally wrong and demeans X.” It’s a rare analogy that can hold up under that scrutiny.

And it’s a rare juror who is persuaded by an attorney-generated analogy (they can be persuaded by their own analogies, but that’s another post). So instead of spending all of your time trying to come up with the perfect analogy, spend that time focused on what you want the jurors to focus on: your case.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.