The Litigator Frames the Narrative

 

The Litigator Frames the Narrative to Advantage

 

Framing is the art of knowing how to present the glass as half full or half empty according to narrative advantage.

 

Framing for Risk Aversion

 

During the 1980s Amos Tversky and Daniel Kahneman conducted a series of social science studies to explore framing effects.

 

They found that generally speaking, people tend to be risk adverse.

 

For example, the  statement that "the odds of survival after one month of surgery are 90%"  is more reassuring than the equivalent statement that "death within one  month of surgery is 10%."

 

In a Tversky and  Kahneman study a group of subjects was presented with two alternative  solutions for 600 people affected by a hypothetical disease:

  • option A saves 200 people's      lives
  • option B has a 33% chance of      saving all 600 people and a 66% possibility of saving no one

These decisions have the same expected value of 200 lives saved, but 72% of subjects chose option A because they perceived option B as more risky.

A second group of  subjects was presented with effectively the same scenario (statistically  speaking), but "framed" quite differently.

  • if option C is taken, then      400 people die
  • if option D is taken, then      there is a 33% chance that no people will die and a 66% probability that      all 600 will die

In this second group,  78% of the subjects chose option D (which is the mathematical equivalent  of option B), whereas only 22% of participants chose option C (which is  the mathematical equivalent to option A).

Subjects chose different  options because the options were expressed with different frames of  reference.  Subjects preferred options that they perceived to be less  risky.

 

Framing to Induce Stereotypical Preconceptions

 

In a classic study, subjects are told that a group of 100 people is composed of 70% artists and 30% attorneys.

 

A member of the group is chosen at random.

 

That person is male, 43  years old, an avid reader with great attention to detail, logical,  disciplined and focused, an excellent problem solver who can solve the  New York Times crossword puzzle from Monday through Friday and earns  over $200,000 a year.

Is this person more likely to be an artist or an attorney?

 

The majority of subjects  in the study is 'seduced' into saying the person is most likely an  attorney, based on stereotypical preconceptions, while ignoring the  statistical fact that the person is 70% likely to be an artist.

 

 

Reframing

 

The term "reframing"  refers to using language to re-cast in a different light the frame that  has been previously presented by another.

 

We see this daily in political wrangling.

 

The "inheritance tax" is reframed as the "death tax."

The "Affordable Health Care Act" is reframed as "Obamacare."

The "social safety net" is reframed as "socialism."

The term "sacrifice" is reframed as "working together."

The term "progressive taxation" is reframed as "paying your fair share."

 

Litigators must hone the  skill of reframing to be successful. Whoever owns the contextual frame  of litigation narrative owns the case.

 

The  plaintiff argues the physician's "negligent omission," while the defense  argues the physician's "judgment call" to go a different route.

 

The  plaintiff argues that the injured motor vehicle accident victim is  "unable" to improve, while the defense argues that the person is  "unwilling" to participate in rehabilitation.

 

The  prosecutor argues that the defendant "evaded" taxes, while the defense  argues the defendant legally "avoided" exposure to taxes.

 

Framing and reframing  play a significant role in every legal case; there is one set of facts,  but many ways to portray those facts. Framing and reframing form the  foundation for most arguments before the bench or the jury.

 

As the Tversky and  Kahneman research presented above demonstrates, psychological leanings  and biases, such as risk aversion, may inform that some framing options  will be more successful than others.