"Every time I think about those kids it gets me mad," President Obama said, while talking about the first grade victims in the Newtown massacre of 2012. Only his face read "sad" rather than "mad," as he gave a statement earlier this week on his new executive actions to reduce gun violence. It was one of only a few times that a U.S. President has wept openly in the public eye. Predictably, some were moved by the candid emotion, while others mocked it. Conspiracy theories even had him putting something in his eye just before the tears, and Andrea Tantaros of Fox News said that someone should "check that podium for an onion." In this case, any fair audience would grant that the President's tears were not a strategy, but a genuine reaction to recalling what he has frequently called the worst day of his presidency. But the reaction to that emotional display brings up a broader question: Whether it is a strategy or not, how are emotional appeals to sympathy perceived? 

According to some new research (Shirako, Kilduff, & Kray, 2015), it depends. The research article is entitled, "Is There a Place for Sympathy in Negotiation? Finding Strength in Weakness," and it is touted in ScienceDaily as demonstrating the strategic value of sympathy. The studies tested a number of negotiation scenarios and the results indicate that when a negotiating party conveys emotional reasons behind their position, the other side is more likely to be sympathetic and to compromise or find creative solutions. However, the researchers also found that the effectiveness of an appeal to sympathy depends on the power of the party using it. Parties in a "low-power" position tend to benefit from emotional expression that elicits sympathy from the other party. When sympathy appeals come from parties in a "high-power" position, however, they tend to backfire and carry a cost to the relationship. This post will take a closer look at the study, as well as its implications for advocates in litigation.  

The Research: Sympathy Works When It's a Low-Power Strategy 

The researchers from the University of California-Berkeley and New York University conducted five studies in which MBA students acted as negotiators in scenarios involving a construction dispute between a contractor and a real estate developer. When negotiators for the contractor relied on sympathy -- in this case, noting that the contractor would be forced into bankruptcy if the developer called in a loan, then they obtained better results. In the presence of sympathy, both parties were more likely to split the costs and to work out an agreement. 

In separate studies, the research team compared the effectiveness of that sympathy appeal to more reason-based appeals and found that the emotional appeal enjoyed an advantage. The researchers noted, "We find that negotiators who actively appeal to the sympathy of their counterparts achieve improved outcomes, both in terms of distributive value claiming as well as integrative value creation."

But before one takes this study as a blanket encouragement to bring out the sad violin in order to persuade, one caution is in order: Look at the reason why sympathy sometimes works. In contexts like the negotiation scenario used in the study, sympathy seems to work because it reveals a weakness, and that weakness becomes a basis for a concession. The authors explain that their results "suggest that negotiators with certain sources of weakness may actually benefit from revealing their weakness, if doing so elicits sympathy from counterparts."

Revealing weakness, however, isn't always a good idea, particularly when that weakness would seem out of character. When the party appealing to sympathy was the low-power contractor risking bankruptcy, it made sense. But when the sympathy appeal comes from a higher-power party, it doesn't. Higher-power negotiators who use sympathy appeals suffer a relational cost. "Relative to low-power negotiators," the team noted, "we find that high-power negotiators' sympathy appeals are seen as more inappropriate and manipulative, and may damage the negotiators' relationship going forward." 

The Implications: You Don't Necessarily Want a Low-Power Strategy

In the canon of stereotypical lawyers, the sympathy appeal plays a big part. Particularly with plaintiffs, the expectation is that counsel in all kinds of cases will try to wring sympathy for "my poor client" from the jury. Among modern and savvy litigators, however, that is mostly a caricature. Attorneys have wised up to the fact that the obvious appeal to sympathy doesn't tend to work because it conveys weakness and suggests that if you resort to emotion, then the facts and evidence must not be on your side. Sympathy also calls attention to itself as an effort to manipulate the jury's feelings.

Good litigators still aim for some emotional resonance to their case, but will typically try to avoid anything that comes off too heavy-handed as a sympathy appeal. Among plaintiffs, those who are fully devoted to Don Keenan and David Ball's "Reptile" approach to persuasion would probably say that sympathy doesn't work: Why, after all, would the survival-focused reptilian brain pay any heed to a stranger's pain? The study results discussed above provide a rebuttal showing that, at least in the negotiations context studied, we aren't entirely reptilian: Even an adversary's pain leads to concessions. For that reason, the sympathy appeals studied may still play a role in your settlement negotiations, and possibly in mediation. One of the study's authors, Laura Kray, explains "Sympathy is an emotion that corresponds with good will," and facts and appeals that elicit that human reaction provide a measure of common ground. "In negotiations," she continues, "it can translate into a willingness to problem solve in ways that might not otherwise occur." 

In courtroom situations, however, any effectiveness that might stem from sympathy appeals comes at the cost of a threat to credibility. And credibility is an advocate's stock in trade. Negotiators may be able to afford to look a little vulnerable here or there, but advocates should not, in most cases, concede that ground. If jurors are likely to arrive at a feeling of sympathy on their own based on facts you offer, that is great. But you'll look manipulative and risk confirming their stereotype of the emotional lawyer if you try to push that button for them. And if you're likely to be seen as the party with greater power in this dispute -- the big company defendant, or the party with more control -- then sympathy probably isn't in your toolbox.