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“We are what we pretend to be.” Kurt Vonnegut

“Everyday is a great day!” That’s what he said, and appeared to believe with every fiber of his body. He was a 20-something, male clerk in an airport hotel’s gift shop. My response to, “How are you today?” paled in comparison. “Oh, alright,” I said as I contemplated what was about to be a very long research day. I didn’t expect to have a philosophical discussion that morning, but after what he said, I couldn’t help but ask his secret. He looked so content, so convincing, so…what’s the word? Oh yeah, happy.

So I asked, and his answer stuck with me. He said about five years earlier he found himself in a tough spot; he was making poor choices; he was unhappy and making others around him unhappy. He decided to change his life, and he would do it by simply declaring that every day was special, that “everyday is a great day!” He said from that point on, his attitude changed and he noticed that others’ attitudes also changed. He found that when he’d tell people that, they smiled and seemed a bit lighter, less stressed. I felt the same – his answer had reminded me that I should be focusing on the positive; that I should be thankful to have a job that allows me to have interesting and challenging conversations nearly every day; that I should be looking forward to interacting with a whole new group of people – people who had important things to say and from whom I would learn a lot. In short, it really was about to be a great day, and I needed to change my attitude.

I was reminded of this encounter during a recent jury selection. While I typically believe it’s somewhat of a waste of time to elicit “promises” from your potential jurors (i.e., “Do you promise that you’ll give my client a fair shake?” “Do you promise that you’ll follow all of the judge’s instructions?” “Do you promise to not let your sympathies influence your decision?”), this attorney took a similar, but improved tack. His questions, and subsequent labeling of the jurors, utilized a well-researched phenomenon called “social labeling.”

The encounter with the hotel clerk was more in line with what we might term self-fulfilling prophecy, which is summed up nicely by the Thomas Theorem: “If men define situations as real, they are real in their consequences.” In my case, defining the day as “great” leads me to hold a more positive attitude which, in turn, molds my behavior – increasing the odds that it really will be a “great” day. Regardless of the theory’s name, there are interesting implications for jury selection and your trial strategy.

I first learned about labeling theory back in the dark ages – college. We were studying various theories of persuasion and related studies. One that fascinated me was a study where children either received a lecture about keeping the classroom clean and tidy, not littering, and the dangers of pollution, or they were repeatedly told that they were “neat and tidy” children by their teachers and the janitor. They were also encouraged to think about why they were so “neat and tidy.” In the end, those children who were labeled “neat and tidy” were consistently much more so: putting trash in the wastebaskets, and picking up after themselves and others. This research has been replicated in hundreds of studies. For example, 1) Labeling entire communities as “very giving” and “philanthropic,” resulted in a significant increase in giving to local charities (compared to similar communities who did not receive the same labeling); and 2) Labeling students as “high achievers,” resulted in much higher scores on various standardized tests.

So back to jury selection. After the attorney asked various questions to find the high-risk jurors, he didn’t ask the rest to “promise” to be fair (or open-minded, or wait to hear both sides, or follow the judge’s instructions); instead, he said something like, “Great, I’m glad that you’re all (as he made eye contact with each juror) open-minded people who will be fair to ‘Acme.’” This is classic labeling.

If he wants to make this really stick, during opening and again in closing, he’ll use the same tactic. He’ll remind jurors by stating something like, “So, as you all told me during jury selection, you are fair, open-minded people who will view ‘Acme’ ….” Or “As fair people, I’m sure you’ll want to ….” Or “since you are the kind of people who will be very thorough and thoughtfully go over all of the evidence…” Or “You are smart and have common-sense, and that will serve you well as you…”

I’m going to try this with my 15-year-old son. He’s promised me he’ll clean his room and study, but he’s broken that promise so many times, it’s time to try a new method. When he gets home later today, I’ll work in a few statements like, “You are such a conscientious student!” “I am so lucky to have such a helpful son!” “I’m sure glad you’re such a neat-freak!” Do you think he’ll smell the sarcasm?

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