Back to School Reading: Change of Heart
With the cooling temperatures, comes the time to put aside detective fiction, vampire tales, and vampire detective stories and turn to non-fiction. Picking up and reading even a few pages of Change of Heart: What Psychology Can Teach Us about Spreading Social Change by Nick Cooney (Lantern Books 2011) will make you a better trial lawyer.With the cooling temperatures, comes the time to put aside detective fiction, vampire tales, and vampire detective stories and turn to non-fiction. Picking up and reading even a few pages of Change of Heart: What Psychology Can Teach Us about Spreading Social Change by Nick Cooney (Lantern Books 2011) will make you a better trial lawyer.
In his slim, accessible book, Cooney reviews quirky experiments conducted by universities and corporations to determine how people make decisions. He then takes the studies out of boardrooms and classrooms and suggests how activists can apply them to get people to contribute to their causes. As an animal rights activist, Cooney's examples are often effective techniques to persuade people to go vegan. Carnivorous public defenders will find these techniques as relevant as their herbivore colleagues. We persuade juries, judges, and prosecutors more effectively when we understand how people make decisions, whether alone or in a group, and what influences those decisions.
The book contains dozens of gems and insights. My favorite was “Getting a person to commit to doing something is a good way to ensure they'll follow through.” (p. 90) The author provides the example of a restaurant that began asking customers who made reservations, “Will you please call us if you change your plans?” and then waited for a response. Simply asking the question and waiting for the customer to promise caused the restaurant's no-show rate to plummet from 30% to 10%. I modified my voir dire questions after learning this. I used to ask the panel as a whole, “You understand that you can't hold it against him if Mr. Inocencia doesn't testify, right?” I had always received a chorus of nods. In my first trial after reading Change of Heart, I looked each juror in the eye and one by one asked, “If I decide that Mr. Inocencia won't testify, can you promise not to hold that against him?” I waited for each juror to respond. The first three jurors I asked hesitated and then admitted they couldn't make that promise. I easily knocked them off for cause. I also felt more confident in my jurors who had promised me that that wouldn't hold my client's silence against him.
Still not convinced? Here are three more concepts explained in the book:
Psychological Reactance. “[W]hen a particular freedom is threatened, the desire to retain that freedom makes people value it more than before.” (p. 143) For example, in civil cases, when juries are told they are not supposed to know something, they consider that missing piece of information even more important in deciding damages. Food for thought when objecting to evidence in front of a jury.
Conformity. “[T]he presence of even one other person in a group who didn't voice the majority opinion led to an eighty percent reduction in conformity among the study participants.” (p. 58) In other words, never doubt the power of the one juror who's on your side.
Repetition. Denying false statements is less convincing than asserting true ones: One researcher “found that the statement, ‘I am innocent' was more convincing than ‘I am not guilty' because with the latter the speaker gets paired with the idea of guilt in the audience's mind.” (p. 129) This reinforces my commitment to discussing my client's innocence in opening and closing.