It used to be thought that by activating dire
consequences in jurors’ minds, jurors would rush to fix or avoid consequences.
This has held true whether one is plaintiff justifying huge damages, or defense
arguing “They’re the bad guy, not us. Don’t let them get away with it.” And,
certainly, threats to life, limb or pocketbook attract our attention. TV ads
and commercials point constantly to just how prevalent such thinking is, and
marketing research has conducted study after study that justifies the “Get ‘em
scared and they’ll come running” position.
However, more recent studies show that
“gain-framed” appeals, or appeals that encourage people to positive benefits,
have a slight persuasive edge over “loss-framed” appeals. The researchers
suggest that it might be because we don’t like being bullied or threatened into
behavior.
When it comes to trial practice, use both. Whether
you are plaintiff or defense, show jurors the consequences of their verdict, and
give them a positive theme with which to uplift. Help jurors see how their
decision will accomplish a higher good, something that benefits the larger
population, or their community, or improve a system. Something that motivates
jurors to feel good about their decision, not just terrified into it.
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