I think it is now possible to divide the #MeToo movement, so far, into two phases: Pre-Kavanaugh and Post-Kavanaugh. The cultural phenomenon of women stepping up to hold sexual harassers and abusers accountable has hit a roadblock. If the charges against Harvey Weinstein was the movement’s Battle of Austerlitz, then the confirmation hearings for Brett Kavanaugh was their Waterloo. Christine Blasey Ford, and a number of other accusers, stepped up to air detailed and credible claims against the Supreme Court nominee, but in the end, it did not matter. And to say the country is split as a result, is an understatement. In the aftermath a #Himtoo hashtag has emerged to support a rival narrative in support of those accused.
What this means for the legal persuader is that when cases touch on issues of harassment and other forms of abuse, or when cases depend on the credibility of an accuser of some kind, you need to ask in voir dire. But it also means that you need to get beyond the vague commitments both sides will make — It is a serious issue, people should be respected, accusations need proof, etc. — to get to the real differences in worldview that create that division. You need to identify, acknowledge, and respond to distinct scripts. When I say “scripts”, I don’t mean to connote insincerity, but to instead apply the social science sense of the term: A script is a series of beliefs, expectations, and related actions that are fit to a situation. We use scripts to understand, to categorize, and to respond to new events. In this post, I’ll focus on the critical need for legal persuaders to identify and adapt to these scripts in voir dire and persuasion in relevant cases.
The #MeToo Script
The set of attitudes to show support for survivors of abuse and harassment includes several core attitudes:
- Sexual harassment, assault, abuse, and discrimination are all common and frequent occurrences.
- This pattern of abuse is part of a system of male (and cisgendered) entitlement and privilege.
- Incidents are dramatically underreported
- And the reason for the underreporting boils down to the responses to those bringing the accusations: They are diminished, denied, and/or attacked.
The #HimToo Script
The reaction to the previous attitudes is an emerging script that paints those accused as the real victims. That revised script also includes several core attitudes:
- A charge of abuse or assault is very easy to make and very hard to deny.
- Even an unsubstantiated charge can be devastating to the career, relationships, and reputation of those accused.
- Society has developed an oversensitivity to the point that many perviously innocuous comments and actions are now taken the wrong way and used as ammunition.
- The most important value at stake is the presumption of innocence, which is why any accusations need solid and independent proof.
We could expand on both of these scripts, and also potentially consider other scripts relating to the broader issue. But there is one critical takeaway for anyone trying to genuinely persuade on these issues:
You don’t talk someone out of a script by just quoting from the opposing script.
That tends to just reduce your credibility and reinforce your targets’ belief in their own script. And that is the recipe for talking past one another. Instead, the only way to adapt to someone deeply committed to one of these scripts is to, at some level, work within the system of beliefs. By borrowing or bridging off of some of the premises that person holds, you have at least the chance for a meeting of the minds. Arguably, that is what Republicans were trying to do in settling on the message that, “We believe Dr. Blasey Ford when she says she was assaulted…we just don’t believe her when she says she is sure it was Brett Kavanaugh.” And potentially, it is what Democrats were trying as well when they emphasized that, “This is a job interview and not a trial, and there shouldn’t be any doubts at all about the moral character of someone sitting on the nation’s highest court.”
The fact that both messages failed to bridge the gulf is a reminder that this kind of script-to-script persuasion is hard, and often unlikely. Deeply committed advocates are generally going to maintain the positions that they already have. That makes it critical for trial lawyers to identify these scripts in voir dire — to listen for the key words, phrases, or arguments that imply their worldview on this issue, or other issues. And it also makes it critical to continue to search for ways to adapt, to closely see an opposing script and to look for ways you might establish a beachhead, and look for opportunities for real persuasion with those who are open to that possibility.