Now that the GOP's standard bearer has formally cinched the nomination, the voices of traditional conservatives and establishment types within the party are shifting from "Never Trump" to "Okay, I Guess It's Trump." Senator Marco Rubio, for example, who Donald Trump mercilessly mocked in the manner of your middle-school bully as "Little Marco," and who said of Trump that he is a "con artist" and as "the most vulgar person ever to aspire to the presidency," now says that he would be "honored" to speak on Trump's behalf at the convention. And that is just one of the many conversion stories on the road to Cleveland. On the other side of the aisle, we can expect to soon see a similar phenomenon as many former Bernie Sanders supporters come around to the belief that Hillary Clinton, though previously derided as a corrupt establishment figure, now gets their full support. Sure, some will hold out on both sides, but it seems likely that the majority of the "Never Trump" and the "Never Hillary" crowds will come around. To many observers, especially those who never changed their views, that move will look pretty hypocritical. And it may be, but it is hardly unique.
A recent article in Mother Jones by Northeastern University psychologist David DeSteno, for example, shares the view that these forms of extreme but convenient mental flexibility are the rule, not the exception. According to DeSteno, "The mind evolved to be adaptive, not saintly. This fact doesn't excuse hypocritical behavior, but it does help to explain why it's so prevalent." In response to a perceived necessity or a higher priority, most of us are willing to waver even on some fairly fundamental beliefs. "When faced with the option to either stand on principle or gain advantage," DeSteno adds, "people tend to go with the latter." Now, my own prediction that anti-Trump and anti-Clinton voters will mostly fall in line for the nominee within their respective parties might be taken with a grain of salt since I once predicted that Trump wouldn't get more than a quarter of his party's vote. In my defense, I wasn't the only one who was wrong about that, but the great shift within the party from doubt and opposition to a reluctant embrace illustrates the flexibility that DeSteno is talking about. To really understand attitudes -- including the kinds of attitudes that matter in court -- we need to not just understand what they are, we need to understand how they evolve and adapt, and to understand how the seemingly hypocritical stance gets rationalized. In this post, I will take a look at the research DeSteno conducted with Claremont McKenna psychologist Piercarlo Valdesolo and share a few thoughts on what this means to courtroom persuasion.
David DeSteno and Piercarlo Valdesolo have studied the phenomena of moral reasoning and hypocrisy for a decade, with some of their findings described in the 2011 book, "Out of Character: Surprising Truths About the Liar, Cheat, Sinner (and Saint) Lurking in All of Us." Based on the experiments described in the recent Mother Jones article, two main findings stand out.
Shame on You, But Fine for Me
We do not apply the same standard of evaluation to ourselves and to others. To explore that, DeSteno and Valdesolo created a situation in the laboratory that led research participants to cheat. The volunteers were told that they would complete either an easy and fun task or a difficult and onerous one, then the next participant in line would complete the other task. The assignment was supposed to be determined by a virtual coin flip on the computer screen, but with or without that result, fully 90 percent of the research participants cheated by taking the easy task and leaving the difficult one to the next person.
Participants, including of course the 90 percent who had just cheated, then watched an actor posing as another participant go through the same procedure. They were then asked to rate their own fairness and the fairness of the other participant. "As we expected, people viewed their own cheating behavior as relatively acceptable but had no hesitation in condemning an identical transgression when committed by another."
Hurray for Our Team
Like anti-Trump Republicans and anti-Hillary Democrats, everyone still wants their team to win. Using the same cheating scenario, DeSteno and Valdesolo created a fairly arbitrary sense of team by conducting a short and rigged "test" to determine whether the participant was the type of person who was prone to over-estimating or under-estimating, and then asked the participants to wear a red or a blue wristband reflecting that assignment.
After being grouped and banded, participants then went through the same process of being led to cheat and then asked to evaluate another who had done the same thing. As you might expect, the hypocrisy continued but with the added factor of showing favoritism to their own group. "If the actor was a member of a participant's group—a group that we had just created out of thin air—he was perceived as behaving more morally than if he was a member of a different group."
The courtroom is not just a legal arena, but also a setting where jurors and other fact finders bring their own moral principles to the evaluation of others. In that context, it helps to understand the ease and flexibility in changing views and in selectively applying our principles to others. Drawing from DeSteno's work and the current political arena, I think three conclusions are in order.
Attitudes Are Dynamic
With Hillary and Donald, we are dealing with two of the best-known figures in current politics, so it is easy to think that opinions are already formed and the polls won't change much between now and election day. But there are good reasons to believe that we will continue to adjust our views in response to a changing landscape. The same goes for jurors. The anti-corporate juror might come into the case with a strong bias against the larger corporate defendant, but may still rationalize their way to a defense verdict. In our experience, that outcome is more common than expected because a distrust of corporations leads jurors to believe that anyone dealing with a corporation shouldn't have trusted the company and should have done more to protect themselves. Similarly, a strong anti-plaintiff juror can come around to the belief that this plaintiff's case is the exception to the normal trend in "frivolous" suits. Attitudes are definitely important, and in voir dire you should assume that any juror would have difficulty in setting them aside. But once your jury is set, don't assume that the die is cast. Jurors can adjust even strongly held attitudes, and do so frequently.
But Attitudes Are in Search of Balance
As the strong anti-Trump voices in the Republican party steadily became pro-Trump, the shift is often rationalized based on a higher purpose. Marco Rubio, for example, told CNN's Jake Tapper, "I want to be helpful. I don't want to be harmful, because I don't want Hillary Clinton to be president." As he joins others in walking back his previous comments, one way of shoring up the feeling of cognitive inconsistency is to frame it as though the top priority has always been the same. Defeating Hillary Clinton, even by electing a "lunatic trying to get ahold of nuclear weapons" (Rubio's words) is the job #1. While it is always possible to simply say, "I've changed my mind in light of current circumstances," the mind seeks the comfort of a feeling of consistency. Any change prompts cognitive dissonance, and that feeling is balanced out by an emphasis on the principles that haven't changed. In the courtroom, jurors are also seeking a feeling of consistency. For a juror who dislikes the plaintiff, for example, but otherwise cannot deny liability, the easiest way to achieve balance is to dial down their perceptions of causation or damages.
And Balance Sometimes Requires Switching Teams
In the coming election, it seems safe to anticipate few outright switches from Hillart to Trump or vice versa. But it does seem safe to anticipate many switches from "I'll never vote for that man/woman..." to "Well, he/she is the lesser of two evils." In the second of the two research scenarios described above, research participants did show a preference for those on "their team," even when presented with evidence or moral transgressions. That favoritism tends to lead parties to want people who are like them on the jury: A doctor wants other medical professionals and a prosecutor wants those who have some connection to law enforcement. That team-affinity may indeed play a role, but in trial, that effect is also counterbalanced by another effect: Peer scrutiny. Jurors want to believe that they themselves would have never let themselves get into this kind of trouble, and that means that the more the party shares the juror's circumstance, the stronger the juror's motivation to believe that the trouble could have been avoided if the party would have just been more careful. In other words, a juror who is similar to the plaintiff might experience greater psychological comfort if they switch teams in order to share the defendant's belief that the plaintiffs partially brought this misfortune on themselves.
It might seem a little hypocritical, but it is human nature.