Trial Science | The "click-whirr" response
Just like a judge can bestow extra meaning and credibility upon an expert by declaring them so in front of the jury, a related phenomenon exists in the minds of the jurors: “click, whirr” responding (Cialdini, 1993). You know the saying, “you get what you pay for.” This implies that price equals quality. In a very complex world with multiple factors to analyze, many times we will resort to a stereotype upon which to base our decision (i.e., a more expensive computer is a better computer) because there are just too many complex features to examine and we lack the time or expertise or both to do the proper analysis. How might that relate to the jurors in your case? In an interesting study in 1981, students at the University of Missouri listened to an “expert” lay out the reasons for having comprehensive testing prior to being able to graduate from college. Some of the subjects heard that this program would go into effect immediately and would apply to them. Other subjects heard that the program would take years to implement and would not affect their graduation. The subjects who had no personal stake in the outcome said they were persuaded merely by the speaker’s educational credentials in making their decision (a “click, whirr” decision based on the stereotype that an expert is an expert). The subjects who might have had to actually take the tests said the arguments themselves were what they analyzed, not the speaker’s credentials (“controlled responding”). This effect has been replicated in other studies. We appear to make more controlled decisions when the topic hits us personally. How about juries, then? Some of the biggest decisions jurors have to make, like imposing large punitive damages, may or may not affect them personally. When it does, it is usually bad for the plaintiff, like when jurors do not impose punitive damages in an insurance bad faith case because “they will raise my rates.” Think about using controlled responding on the jury to reverse this effect. Point out how a company like AIG pays out huge executive bonuses, gets a government bail-out, and still raises rates (when have insurance premiums EVER gone down?). How much did the bail-out cost every juror personally? Without internal controls against financial misuse, how many of their premium dollars are squandered? Isn’t it more cost-effective to send the industry a message so that they are accountable to each of their customers? Etc. etc. etc. [It is interesting to note that in Oregon, half of the punitive damages go into state programs and half go to the plaintiff. In that state, then, jurors have a personal stake in giving massive punitives because it helps them personally!] The story model that I preach for openings has a critical element in it right at the start: make each juror part of the story, not just an observer of the story. In this way, each juror develops a personal stake in the outcome and should use controlled responding, not “click, whirr” responding to reach a decision.
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The “click-whirr” response

Just like a judge can bestow extra meaning and credibility upon an expert by declaring them so in front of the jury, a related phenomenon exists in the minds of the jurors:  “click, whirr” responding (Cialdini, 1993).

You know the saying, “you get what you pay for.” This implies that price equals quality. In a very complex world with multiple factors to analyze, many times we will resort to a stereotype upon which to base our decision (i.e., a more expensive computer is a better computer) because there are just too many complex features to examine and we lack the time or expertise or both to do the proper analysis. How might that relate to the jurors in your case?

In an interesting study in 1981, students at the University of Missouri listened to an “expert” lay out the reasons for having comprehensive testing prior to being able to graduate from college. Some of the subjects heard that this program would go into effect immediately and would apply to them. Other subjects heard that the program would take years to implement and would not affect their graduation. The subjects who had no personal stake in the outcome said they were persuaded merely by the speaker’s educational credentials in making their decision (a “click, whirr” decision based on the stereotype that an expert is an expert). The subjects who might have had to actually take the tests said the arguments themselves were what they analyzed, not the speaker’s credentials (“controlled responding”). This effect has been replicated in other studies.

We appear to make more controlled decisions when the topic hits us personally.

How about juries, then? Some of the biggest decisions jurors have to make, like imposing large punitive damages, may or may not affect them personally. When it does, it is usually bad for the plaintiff, like when jurors do not impose punitive damages in an insurance bad faith case because “they will raise my rates.” Think about using controlled responding on the jury to reverse this effect. Point out how a company like AIG pays out huge executive bonuses, gets a government bail-out, and still raises rates (when have insurance premiums EVER gone down?). How much did the bail-out cost every juror personally? Without internal controls against financial misuse, how many of their premium dollars are squandered? Isn’t it more cost-effective to send the industry a message so that they are accountable to each of their customers? Etc. etc. etc. [It is interesting to note that in Oregon, half of the punitive damages go into state programs and half go to the plaintiff. In that state, then, jurors have a personal stake in giving massive punitives because it helps them personally!]

The story model that I preach for openings has a critical element in it right at the start:  make each juror part of the story, not just an observer of the story. In this way, each juror develops a personal stake in the outcome and should use controlled responding, not “click, whirr” responding to reach a decision.

 

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