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The Advantage Blog

  • Theodore O. Prosise Ph.D.


Updated: Jul 14, 2023

The dilemma for civil defendants is simple. Although the plaintiff has the burden of proof, the plaintiff frames the issues of the case first. They establish the initial narrative structure they want the jurors to adopt. Second, the plaintiffs, in many cases, can appeal to common negative attitudes toward corporate defendants, lawyers (in legal malpractice cases), insurance companies (in bad faith cases), and employers (in employment cases), just to advance a few examples. So, while the plaintiff has the burden of proof, the initial information can become too “sticky,” making it difficult to undo. An effective initial framing of the case that appeals to the broad cultural narratives can activate prejudice against many civil defendants.

It is a well regarded view that people are motivated to accept information consistent with their beliefs, and to reject information contrary to those beliefs. In contemporary social science this phenomena is called “motivational rationality”; that is to say that the rational thought process people use is bounded by what they are attitudinally motivated to assess, evaluate, and even remember.

The traditional notion is that the plaintiff presents first and last because of their unique burden. However, the body of work on motivational rationality and the recent work by Lewandowsky make it clear that the defense is in a real bind. As Lewandowsky points out in his research, it takes much more cognitive effort to engage and undo “sticky” issues. This not only requires cognitive ability, but also the motivational desire that fuels an interest in working harder. In short, oft times the defense is left de facto with the burden to prove it did nothing wrong.

There are ways to combat this problem: First, the counter-message must be simple and clear with a central or core message and a simple, but powerful, narrative theme.

Second, repetition and drama (yes, drama) are critical. It is not just about “getting the testimony” in the record. The defense should control those events that will rise to a juror’s level of importance. The key facts and evidence must be given “presence” through performance.

Third, graphics, which are a form of visual advocacy, combine information with design to make issues memorable, meaningful, and understandable in context. The dilemma of the defense can be addressed by “process graphics” that, by design, teach jurors how to argue for the defense.

It is not enough to persuade jurors. The trial advocate must do something more difficult. He or she must arm and motivate jurors to be effective advocates for them in deliberation.

Solving the defense dilemma is a two-step process. Jurors must first be motivated to act on the defense’s behalf, and they must be given the resources — linguistic and rhetorical, legal, and visual to become effective defense advocates.

The dilemma of the civil defendant is ever-present, but there are means to fight it and to engage with jurors so that they are willing and able to deliberate with cool reason and process as they advance the defense’s narrative to challenge that of the plaintiff.

Stephan Lewandowsky, Ullrich K.H. Ecker, Colleen M. Seifert, Norbert Schwarz, and John Cook, “Misinformation and its correction: Continued influence and successful debiasing,” Psychological Science in the Public Interest, 13(3), 106-131.

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