At the heart of our thinking on persuasion, there is one depressing question: "Is it possible to persuade someone once they have dug in on a position?" The rational model would like to think so, and the law would like to think so as well. Give someone evidence, and you influence their views. Even when jurors have strong current attitudes, if they declare themselves to be "open" to that new evidence, then they're typically okay as far as the law is concerned. But the more one learns about the possibilities for true attitude change, the more tenuous that openness becomes. This is particularly true in the face of research on what is called the "backfire effect," or the phenomena of individuals hardening their views in response to evidence that should modify or refute those views. The possibility that persuasion won't just fail, but will also rebound is especially depressing. Based on the research, however, it is not just stubbornness that causes contrary facts to bounce off our constructed worldviews. It is also the fact that the new evidence invites counterargument and that counterargument, even if it is purely mental, activates the entire network of attitudes that run counter to the new evidence. The activation of that network then touches off a kind of arms race in which the weight and complexity of our current attitudes are able to easily overwhelm new evidence, and the reminder that we have such a robust stock of reasons serves to strengthen our commitment to the original attitude. 

That, at least, has been the conventional explanation for the durability of present attitudes in the face of contrary evidence. But based on new research, there may also be another component: identity. A new article (Trevors et al., 2016) explores the possibility that the main reason that reasons often fail is that they can threaten the self-concept of the hearer. If your persuasive targets feel like they would need to alter their own sense of identity in order to accept your argument or your evidence, then it is far easier to just think of a reason to reject that argument or evidence. The study, summarized in a recent piece in Research Digest, looked at attitudes toward genetically modified foods and the effect of new information on these attitudes. That meant, in part, looking at individuals who define themselves in terms of their support for natural foods. "When new information threatens the recipient's sense of identity," the reviewer in Research Digest wrote, "this triggers negative emotions, which are known to impair the understanding and digestion of written information." This creates a practical problem for persuaders. When you are arguing in a context where you expect opposition from your target, it can help to consider alternatives. "If persuasion is most at risk of backfire when identity is threatened," they continue, "we may wish to frame arguments so they don’t strongly activate that identity concept, but rather others." In this post, I will look at what this might mean for litigators and other persuaders. 

A Real World Example: White Privilege

If you want to test reactions to a hot-button issue, try mentioning the phrase "white privilege." To one side of the political spectrum, it refers to the obvious and unfair benefits of generations of institutional discrimination against minorities. But to the other side of the spectrum, it is political correctness run amok, and a form of special pleading that creates a barrier to the color-blind society that we ought to have at this point. Pressing the point on someone who doesn't already believe it tends to backfire, and indeed that is what the research shows. For example, one recent study (Phillips & Lowry, 2015) showed that when presented with evidence of white privilege, white people tended to react by claiming greater personal hardships in their own lives. In other words, people like to think that they've made it based on merit alone, and because the information on privilege threatened their own sense of autonomous achievement, it motivated the belief that the evidence was not accurate, at least not in their own case. If it is possible for persuasion to take place in this context, then, it would have to be framed in a way that did not require message recipients to set aside their own identity. For example, instead of taking a "You didn't build that" tack, the advocate should try emphasizing that, while no one can be successful without hard work, institutional barriers cause some to have to work harder than others, and that isn't fair.  

In Opening Statement: Weighing in Against Anti-Corporate Bias

In a legal presentation, you might not care what the other side thinks: Even if your arguments and evidence cause them to dig in even harder, that won't cause you to hold back. But when you are arguing for the benefit of a third-party audience like a jury, judge, or arbitrator, and that audience is likely to have established views on the topic you are addressing, then it helps to think about whether the form of argument you're offering is more likely to lead to a rebound or to a potential conversion. In some cases, you might need a dug-in decision maker to admit to the possibility they might be wrong. 

Consider the prevalence of anti-corporate bias. Based on our own current data, 84 percent of the jury-eligible population believes that a large corporation would "often" or "almost always" lie if it could benefit financially from doing so. Your corporate defense in that case might require finding a way to frame the argument that does not threaten the part of the audience's identity that is anti-corporate. That is why it doesn't make sense to defend corporations generally, but to instead argue that this company is the exception to the rule, or better yet, to find a way to embrace what is seen as a negative aspect of the company -- for example, the tendency to put profit above all else -- and suggest that this either pushed the company to do the right thing for that reason, or that it created a responsibility on the part of the plaintiffs to have protected themselves.  

In Cross-Examination: Encouraging a Witness to Admit to Mistake

Cross-examination is one instance where you are not just concerned about the effect on the audience, but you are also concerned about your effect on your immediate target. In this case, that is the witness. There are times in cross where it really doesn't matter much how the witness responds, since the real work is done by the question itself. But in other cases, it would be nice to have an admission. In those cases, it helps to ask, "Do the form, phrasing, and structure of my questions invite concessions or do they invite counterargument?" Considered in light of the backlash research, one way of answering that question has to do with identity. If there is a way the witness can agree without sacrificing their own identity, then the chances are far better that they will go along. 

One way to do that is to give a practical excuse (that isn't a legal excuse): 

You were really busy, weren't you? 

And you didn't know all that there was to be known, did you? 

You had a reason to think that it would be okay, didn't you? 

That isn't uncommon, is it?  

Of course, the goal of accommodating the target's identity sometimes matters and sometimes doesn't. In some cases, stubborn denial from the witness would better serve the questioner's purpose. But when persuasion is the goal, it helps to think about how that might be accomplished while leaving the target's identity intact.