This past week, the nation has been locked in yet another moral argument that breaks along political lines: In the wake of the terrorist attacks in Paris, should the U.S. accept Syrian refugees or not? Both sides are grounding their stances in moral argument, but those arguments diverge. One side emphasizes the need to care for those in need and to be fair in avoiding the assumptions of collective guilt. The other side emphasizes the need for protection and a preference for the safety of our own group, which in this case is American citizens. There is little indication so far that either side is persuading the other. This sense of talking past the other rather than engaging them, tends to be a feature and not a bug when it comes to moral arguments, particularly on issues that are infused with politics. According to a new series of studies (Feinberg & Willer, 2015) building on an expanding body of research, that gulf is real. Argument across the divide of differing moral priorities tends to be largely ineffective in persuading those who don't already hold those beliefs. In crafting arguments, even ones that are designed to span a moral disagreement, people don't stray from their own moral foundations. That is exactly what the study found: When asked to spontaneously create moral arguments, we tend to choose those that are grounded in our own moral values, not the moral values of our target audience.
Some would look at that and say persuasion is doomed, at least when it comes to moral issues. But the same research counsels us to not give up hope. Feinberg and Willer also looked at the benefits of reframing, or choosing appeals that are based on the moral foundations that are more characteristic of our persuasive targets. They find that arguments that are reframed in order to appeal to the moral beliefs of your persuasive target are likely to be more effective. For example, arguments in favor of the Affordable Care Act ("Obamacare") or universal healthcare, when framed in terms of "purity" (a favored conservative theme), tend to nudge conservatives toward being more favorable to these typically liberal policies. "Morally reframing political messages," they conclude, "can be effective in persuading both liberals and conservatives." I've written before on the power of reframing in order to persuade those on the other side of the political divide. In this post, I look at arguments made in witness examination (deposition or cross-examination).
The Research: The Power of the Right Frame
In the research report (Feinberg & Willer, 2015), professors Matthew Feinberg of the University of Toronto and Robb Willer of Stanford University contribute to a long line of research showing that distinctions between American liberals and conservatives can be explained by different moral foundations. We all tend to emphasize the same "big 5" moral foundations (care, fairness, loyalty, authority, and purity), but liberals tend to give priority to the first two (care and fairness) while conservatives give greater emphasis to the latter three (loyalty, authority, and purity).
From that starting point, the team conducted six studies, looking at both message generation and reception on a number of divisive topics: same-sex marriage, English as the official language, Affordable Care Act ('Obamacare'), and support for military spending. The first two studies demonstrated that we intuitively tend to generate arguments consistent with our own moral foundations, and those arguments are generally ineffective when used to persuade those with different moral foundations. The last four studies, however, showed that reframing messages in order to adapt to an audience's beliefs are far more persuasive. "Matched messages," in the form of appeals that are consistent with an audience's priorities, "engender a sense that the message 'feels right,' and this feeling in turn influences judgments of the message's position and the larger issue in question."
The Implications for Examination Strategy
Sometimes attorneys examine in order to learn the answers to their questions. But more often, the examination is really an argument couched in the form of questions. The questioner’s goal is to couple their own claim with the demonstration that the other side agrees with the claim, can't answer the claim, or can only answer the claim poorly. When the questioner and the witness disagree on some fundamental principles, that makes witness examination a kind of moral argument.
In that context, questioners might wonder, "What will make our adversary concede our point?" Based on the moral foundations research, we are most likely to frame questions based on our own moral foundations, but that is the framing that is least likely to lead to a concession. When we are fishing for an adversary’s agreement in deposition or cross-examination, we are more likely to win the point if we can reframe it in our adversary’s own moral assumptions.
That's a point that could use an illustration, so let me offer an extended example:
Illustration: Differing Moral Foundations in an Employment Dispute
Despite our tendency to want to separate the two in jury selection, the law and morality are not different realms. Legal decisions, as well as decisions on the facts, are often infused with morality. Let’s consider an employment dispute, for example, an age-discrimination claim following a discharge.
The attorney representing the employer implicitly prioritizes job performance and service to the customer above all else. The former employee and plaintiff witness implicitly prioritizes loyalty above all else. With those differing moral foundations in mind, let’s consider two different ways the questioning could go.
Ineffective Examination: Relying on Your Own Moral Foundations
Defense Attorney: You agree that your performance evaluations show a record of declining performance, correct?
Plaintiff Witness: Yes, that's true.
Defense Attorney: And you agree that your performance is important to the company's ability to serve customers?
Plaintiff Witness: To some extent, yes.
Defense Attorney: So you agree that the company has a reason for your termination?
Plaintiff Witness: No, I don't. They turned their back on me after two decades and that just isn't right!
That series of questions and answers shows a contrast in what each party considers a priority (performance or loyalty) but no meeting of the minds.
More Effective Examination: Building on Your Adversary's Moral Foundations
Defense Attorney: You believe that loyalty is an important value in the workplace, and companies should be loyal to long-term workers, right?
Plaintiff Witness: Yes, absolutely.
Defense Attorney: And loyalty is a two-way street as well, meaning that the employee owes loyalty to the company?
Plaintiff Witness: Yes, and I showed that for two decades.
Defense Attorney: Absolutely, you did. And you agree that an employee's loyalty means not just showing up, but also keeping the performance to company standards?
Plaintiff Witness: Sure, as much as you can.
Defense Attorney: But the company records show that your job performance had declined, right?
Plaintiff Witness: Yes, they do.
Defense Attorney: So, doesn't it seem reasonable that the company might see that as you letting them down on your end of the deal?
Plaintiff Witness: That's possible.
Of course, that is idealized and probably shortened from what you would see in actual testimony. But the difference in this example is that the questioner identifies and adapts to the witness's own moral priorities. That still might not lead to a concession, but it provides a better chance of it.
Questioning in the style of the first example is less likely to lead to agreement, but it can still be useful for other reasons. For example, you may simply want to telegraph to the jury that the witness is putting loyalty over performance. But if the goal is agreement, then speaking the witness’s own moral language is likely to be more effective.