Motivate Jurors Positively, Not Just Negatively

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 “Don’t hold us responsible for the other guy’s doing.” And, certainly, threats to life, limb or pocketbook attract our attention.

Television 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 (O'Keefe & Jensen, in press) show that “gain-framed” appeals, or appeals that encourage people to positive benefits, have a slight persuasive edge over “loss-framed” appeals. O’Keefe and Jensen suggest that it might be because we don’t like being bullied or threatened into behavior.

When it comes to trial practice, use both. Show jurors the dire consequences, yes, but also 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.