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.
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.