Moral Conundrums and
Alan J. Cohen, PhD, Jury Insights
Tinker, Tailor, Soldier, Sailor
Whistle Blower Hero, Terrorist, Traitor
Cowboy Hacker, Foreign Spy in Chief
Good Man, Bad Man, Robin Hood Thief
Morally speaking-who is your client, and what is your case about?
Most people are a little perplexed when facing questions of conflicting situational morality; that is, the very kind of moral questions that reside in many cases making it past summary judgment motions.
Edward Snowden is a pretty good example of a person whose actions present a situational moral conundrum. Imagine taking the position of arguing Snowden is a textbook example of a whistle blower to an audience of jurors with a point of view that Snowden is a traitor, and then imagine the opposite.
Attorneys seek jurors who have favorable moral biases to his/her side of the case, and who are resistant to changing their position. The attorney seeks to remove jurors adverse to the case, and who are resistant to changing position.
We know the mind resists changing a position already taken.
Check out these PsyBlog articles that discuss some common issues in dealing with resistance to persuasion.
Nine ways the mind resists persuasion.
Balanced arguments are more persuasive.
One takeaway for the attorney is that it is a risky strategy to attempt to scare, seduce or manipulate someone into changing a mindset.
When I started studying hypnosis as a practicing psychotherapist, I thought I was going to learn about mind control. Paradoxically, I learned that the basis for helping someone to "change" through hypnosis was in helping the person become unchained from rigid attachments and become receptive to seeing things from a different point of view. The psychotherapist cannot just suggest/command someone to stop doing one thing and start doing another. The therapist has to discover some motivational foothold receptive to change already resident within the person.
Looking at it another way, it's easier to scare a person into not changing-- becoming more rigid and resistant-- than it is to get the person to change. And, if you, as the persuader, come across as someone you threatens the equilibrium for that person, you will encourage their resistance.
If you, as the persuader, cannot deeply understand the listener's emotional and moral attachment to an adverse mindset, it's going to a rough road to making a convincing persuasive argument.
In old psychotherapy parlance, people resist change because they are defended against the anxiety the change represents. Every position we take serves as self-assertion and a protective measure.
We all develop life skills that help us navigate morally confusing waters based on our biology, experiences and teachers.
When we seek to "change someone's mind," we are often entering into territory that butts up against self-identified notions of what it means to be a good or bad person--what's right and wrong.
If the person doing the persuading cannot reach the listener's self-identification to remain a good person, it's a lost cause.
Since most litigation presents two sides of a story, it is important to embrace the "moral conversation" about the inherent choice. The jurors are free to choose, and they need clarification of the moral nature of the choice, and why they should morally identify with the choice for your side of the argument.
Many cases in litigation have an Edward Snowden somewhere in them. It's a kind of "Where's Waldo" game. You have to find the Waldo of conflicting situational morality. You, as the attorney, at some point in the "conversation" of voir dire and opening statement need to both clarify and polarize the moral conundrum in your favor. But your timing must acknowledge the listener's capacity and readiness to integrate your side's moral premise. If you and the jurors do not harmonize, you'll be just as unsuccessful as a marital partner telling the other to stop smoking.