Maximizing Influence with Adjuster, Defense Counsel and Judges

Andrew Finkelstein | Finkelstein and Partners

Recently, it was reported that internet companies such as Facebook and OKCupid have been conducting social experiments with their users’ emotions by manipulating the substance of the information provided. In one study, Facebook revealed it changed the number of positive or negative posts select users saw to examine how emotions can spread on social media. Whether you agree or disagree with these companies using their own customers in social experiments without disclosing their efforts to manipulate, we certainly can benefit from these and other studies, if we use the information to influence the Black Hats for the benefit of our clients.

Social scientists have long been studying effective means of influencing others to take desired actions. Researchers who studied animal behavior have found animals often follow rigid and mechanical patterns when presented with familiar situations. For example, when female turkeys hear the sound of chicks in distress, they automatically gather up the chicks to protect them from harm. During an experiment, when a recording of distressed chicks was placed in a stuffed predator of the turkey, the sound triggered an automatic, predictable response that the turkey’s unconscious brain reacted to and the female turkeys approached the predators and attempted to gather them up.

Are humans any different than turkeys? Psychological studies indicate we are no different than the rest of the animal kingdom. For the sake of efficiency, humans use shortcuts, codes, and lone cues to make instant decisions. In fact, psychological evidence indicates that we experience our feelings toward something a split second before we can intellectualize it.

Let’s face it; we all suffer from information overload. We live in the “Great Information Age”, but this is not the “Great Knowledge Age”. Information does not automatically translate into knowledge. Information must first be processed, absorbed, comprehended, integrated into current knowledge, and then retained for use in a future setting. This is neither easy nor efficient. We don’t have the time or energy or capacity to deal with all the new information presented daily. In fact, automatic, stereotyped behavior when presented with familiar scenarios is so prevalent in human action because it is the most efficient form of behaving.

Most of the compliance process can be understood in terms of human need for automatic, shortcut responding. We often respond mechanically to one piece of information in a situation and ignore all else. It is easier and we find it comforting, like having a safety net because we believe the one feature supports the conclusion. A simple illustration is a presumption we all make that price correlates to value. Since we do not have the time to undertake the steps necessary to have great knowledge of many of the goods we buy, we use the short cut that price equates to value. Non-wine connoisseurs when selecting wine at a restaurant, use this common shortcut – the higher the price, the better the wine. In fact, savvy restaurateurs know few people will select the most expensive or the least expensive wine. As a result, their highest profit margin comes from the middle-priced wines on the menu.

I am not suggesting everything we do is a response to an automatic trigger. We avoid reacting to a single trigger feature when the issue or request is important to us. This article offers some strategies on how to structure requests so as to trigger the target’s unconscious brain – increasing the likelihood of automatic compliance. The secret to success is structuring the request so there is a subconscious reaction to a familiar situation and the effort of thinking is not necessary. Most people have developed a set of trigger features for compliance – a set of specific pieces of information that normally tell us when compliance with a request is likely to be correct or beneficial. Each of these compliance features can be used as a weapon to stimulate agreement with the request. Seven scientifically proven principles, when properly deployed, will assist in influencing either the adjuster, defense counsel or your Judge to act in a way you desire. They are contrast principle; reciprocity; commitment; social proof; liking; authority; and scarcity.

1. The “Contrast principle” or “perpetual contrast” is virtually undetectable. By contrasting higher-priced options with materially lowered price options, the actor always perceives reasonableness when paying for the lower-priced option. We traditionally execute this principle by making high demands. Adjusters are far more likely to fall victim to the contrast principle if the demand is supported by higher verdict results for similar cases, than simply making a demand without support. The verdicts provide the contrast for which their unconscious brain tells them – the demand is not unreasonable because, in contrast, jurors have awarded larger numbers.

   The contrast principle also works effectively with juries when the economic damages are presented as a set of alternatives rather than one clearly defined number.

   For example, anytime you have a life care planner as an expert, make sure they provide three choices of benefits for future care; gold, silver, and bronze levels. If the gold level is 40% higher than the silver and the silver is only 20% higher than the bronze, it is highly likely the jurors will award the silver level. Additionally, the adjuster will automatically believe the silver level is a far better settlement number as their unconscious brain tells them they are not getting a deal if they offer an amount equal to the gold level benefits.

2. The “Rule of Reciprocity” exploits the widespread basic norm of human culture requiring one person to always try to pay back in kind what another person has provided. All members of society are trained from childhood to abide by the rule or suffer serious social disapproval. Multiple studies have proven that people have a tremendous need to repay the kindness bestowed upon them, no matter how small the gesture is. By obligating a recipient of an act of repayment in the future, the rule of reciprocation allows one individual to give something to another with confidence that it is not being lost. This sense of future obligation within the rule makes possible the development of various kinds of continuing relationships, transactions, and exchanges that are beneficial to exploit the rule. To increase the likelihood of compliance and maximize the future benefit, one should give something, ideally unsolicited, before asking for anything in return. When done this way, it will often result in an unequal exchange where the individual will agree to a substantially larger favor than one received.

   Those who practice pharmaceutical litigation are well aware of the pharmaceutical companies engaging in such tactics to drive off-label sales. Purchasing lunch for a medical office for a few hundred dollars often yielded tens of thousands in increased sales of the drug.

   While we cannot engage in such tactics with defense counsel or adjusters, we can ethically deploy the rule of reciprocity for the benefit of our clients. Instead of providing a first favor that stimulates a return favor, making an initial concession will stimulate a return concession of greater value than the initial concession provided. On code for litigators is to say we are at war, and when at war, we concede nothing. However, if we don’t lose sight of our true objective, we can achieve better results by deploying the rule of reciprocity with the technique of rejection then retreat.

   The rejection then retreat technique relies heavily on the pressure to reciprocate concessions. Knowingly starting with a request that is sure to be rejected and giving the target credit for retreating from the original request, the requester is positioned to profitably retreat to a smaller request (the one that was desired all along). The retreated to the position is likely to be accepted because it appears to be a concession.

   There are 3 reasons why the rejection then retreat strategy is so effective:

   1. Uses the contrast principle to create a perceptual contrast such that the target feels they have gotten a great deal.
   2. Responsibility – the target feels responsible for having ‘dictated’ the final agreement. The victim feels like a winner. A person who feels more responsible for the terms of the agreement feels more responsible for honoring the agreement.
   3. Satisfaction – Study after study shows that even though, on average, the victim gave the most when a concession strategy was used, the victim who was the target of the strategy felt most satisfied because they believe they forced the concession.

   Trial attorneys often live by the cardinal rule during negotiations to never bid against yourself. However, with planning, if you occasionally bid against yourself and concede, you are doing it by giving your adversary credit for doing so, your adversary will feel pressure to seriously consider the retreated to the position. In order to effectively execute the retreat, the original position must be based on sound principles; otherwise, you will lose credibility.

3. The “Rule of Commitment” is another strong weapon when trying to influence someone to take the desired action. The key to successfully obtaining the desired action is the psychological need for people to be consistent. People have a strong desire to be and look consistent within their words, beliefs, attitudes, and deeds because:

   1. Personal consistency is highly valued in society;
   2. Generally consistent conduct provides a beneficial approach to life;
   3. A consistent orientation provides a valuable shortcut when dealing with complex issues. By being consistent with earlier decisions and statements, one reduces the need to process all the relevant information again.

   Whenever someone takes a position that is visible to others, there arises a drive to maintain that position in order to look like a consistent person. The Reptile© in all of us hates hypocrisy and anyone who says one thing but does another is a hypocrite. People desire being viewed as consistent because they are considered rational, trustworthy, assured, and sound. Someone who is not consistent is considered fickle, uncertain, pliant, scatterbrained, or unstable.

   Knowing this, we can deploy the Rule of Commitment in two key ways.

   1. Overt commitment by asking for a commitment or pledge. When Don begins a
      Mediation, he overtly states “I am prepared to stay here as long as necessary to reach an appropriate resolution of this case. Are they prepared to do the same?” Once he has the commitment, the mediation ends when Don says it ends because the Black Hats will be called out for not giving a full opportunity and their word is subject to future scrutiny.
   2. Consistency trap – flattery and group acknowledgment results in giving the victim a reputation to uphold and imposes pressure to act in a way that is consistent with their stated reputation. “Judge, while this is the first time I am before your Honor, it was nice to learn that you are known for being reasonable, fair, considerate (you pick what your desired result is),” OR, “Mr. adjuster, I was happy to see the coverage was with your office as it is widely known for being cooperative and fair.” There are too numerous examples of the use of the consistency trap during Voir Dire. However, the pledges we ask jurors to take should be perceived as meaningful.
      Once an active commitment is made, then self-image is squeezed from both sides of consistency pressures. From the inside, there is pressure to bring self-image in line with expected action. From the outside, there is pressure and a tendency to adjust actions to the way others perceive us.

   An alternative way to use the consistency trap is to diffuse a confrontation by pointing out someone is not acting consistently with the group they are a part of.
   Lastly, it is important not to have someone take a stand against something you are seeking to achieve because the Rule of Consistency will work against you.
   While everyone is vulnerable to the commitment trap, it should be noted that as one gets older (50+), their proclivity toward consistency in their attitude and actions makes them more susceptible to fall victim to consistency-based influence tactics. Additionally, those over 50 tend to have very negative judgments and attitudes towards others who are inconsistent.

4. The “Rule of Social Proof” follows the principle that people look at what other people are doing or believing to decide what they should do or believe in any given situation. Powerful imitative effects have been found among adults and can be used to stimulate compliance with a request by informing that many other individuals (the more the better) are or have been complying with the request.

   Social proof is most influential under 2 conditions:

   1. Uncertainty – when people are unsure, or when the situation is ambiguous, they are more likely to attend to the actions of others to accept those actions as correct. Jurors are always in an uncertain situation and the suggestion other jurors awarded substantial monies for pain and suffering in similar facts exploits the principle of social proof to your clients benefit.
   2. Similarity – people are more inclined to follow the lead of similar others. If it can be shown to arbitrators similar awards for similar injuries by other arbitrators, your arbitrator will feel the pressures of social proof.

5. The “Rule of Liking” was best explained by Clarence Darrow when he said, “the main work of a trial attorney is to make a jury like his client.” People prefer to say yes to individuals they know and like.

   Compliance requests increase with attractiveness and likeability. Research shows physical attractiveness provides advantages, including a halo effect that extends to favorable impressions of other traits, like talent, kindness, and intelligence. As a result, attractive people are more persuasive in changing people’s attitudes. Attractive-based favoritism is real.

   In one psychological study in a staged damages trial, a plaintiff that was better looking than the defendant was awarded two times as much as when the defendant was better looking than the plaintiff.

   While we cannot select good-looking plaintiffs or bad-looking defendants, we must recognize the rule of liking and address it the best way possible. Having similar backgrounds and interests increases liking.

   Praise produces liking and compliments enhance liking, and thus compliance. “Humans are phenomenal suckers for flattery.” Simply “I like you” goes a long way. However, if praise is crudely transparent it can backfire.

   Cooperation also increases compliance. When you can be perceived as working with your client as teammates then compliance is high. “We are working for the same goal,” for mutual effect/benefit, compliance is high. Cooperation opportunities exist with the Black Hat or adjuster. Positioning yourself as working with the defense counsel to help him or her get the authority needed to settle the case increases the likelihood of compliance with the request. The traditional “Good cop/bad cop” scenario simply exploits the Rule of Liking.

   Association also plays an important role in compliance. People have an automatic negative or positive association with things they associate with good or bad things. For example, sports jerseys often create an immediate positive or negative impression of the person wearing the jersey of a favorite or hated team. Simply, the innocent association is enough to stimulate our likes or dislike. In a recent trial, our male client wore a purple ribbon during domestic violence awareness month. After a great verdict, one of the jurors made it a point to tell us she noticed the ribbon, knew what it stood for, and knew our client had to be sincere since he was spreading awareness of such an important message.

   One must be careful not to cross the line when seeking compliance with the Rule of Liking by being transparent. Finding out jurors’ passions and having your client testify about engaging in a similar activity must be handled delicately. It generally is less transparent if you have lay witnesses discuss activities your client enjoys that are similar to jurors’ passions. As trivial as similarities may seem, studies show they work.

   Since eight percent of persuasion is non-verbal, mirror and matching your body posture and verbal style with prospective jurors during Voir Dire triggers the Rule of Liking in the unconscious mind of the prospective juror.

6. Strong pressure exists in our society for compliance with requests from an authority. This is known as the “Rule of Authority.” When reacting to authority in an automatic fashion, there is a tendency to do so in response to mere symbols of authority rather than in substance.

   Two relevant kinds of symbols have been shown by research to be effective to accord more deference or obedience by those they encountered.

   1. Titles – Titles provide shortcuts for the unconscious mind to allow for automatic compliance with someone who has an authoritative title. Doctors and Judges benefit from the Rule of Authority and often receive automatic compliance.
   2. Clothing – Well-tailored business suits create deference and increased compliance by total strangers.
      Before submitting to authority or a relevant expert, most ask “how to truthful can we expect the expert to be.” We allow ourselves to be swayed by experts who seem to be impartial than by those who have something to gain by convincing us. Even knowledgeable authorities in the field will not persuade us until we are satisfied that their message represents the facts faithfully.

   Knowing this, to gain an increased likelihood of compliance with our expert’s opinion, we should encourage them to argue or acknowledge a non-central part against their own interest. Subtle statements against your client’s position can be an effective device for “proving” their honesty. Mentioning a shortcoming in a secondary position helps overcome skeptical people. By establishing their basic truthfulness on minor issues, the compliance professionals can be more believable when stressing the important aspects of their arguments. “Sly sincerity” allows you to give up bad things on your case and to not make excuses. Have experts give an argument about why not all facts support his position, then describe major facts as to why they draw the conclusion they do.

7. The “Rule of Scarcity” tells the unconscious mind that opportunities seem more valuable to us when they are less available or limited by time. People seem to be more motivated by the thought of losing something (an opportunity) rather than by the thought of gaining something of equal value. Most effective arguments state things that may be lost rather than what may be gained, especially under conditions of risk or uncertainty. When the Black Hats place a time limit on an offer, they are using the Rule of Scarcity against us. When we present the offer as what can be lost, we are helping Black Hat maximize the influential effects of the time limit. Rather, a full explanation of the available opportunities by rejecting the offer will limit the effects on your client.

   The power of scarcity principle centers on freedoms. As opportunities become less available we lose the freedom of choice and we hate to lose freedoms we already have. The desire to preserve our prerogatives is the centerpiece of the human response to diminishing personal control. Whenever a free choice is limited, the need to retain our freedoms makes us want them significantly more than before. Therefore, when anything interferes with our prior access to some item or freedom, we react against the interference by wanting and trying to possess the item or freedom more than we did before.

   When carefully deployed, these rules of influence can help you maximize the results you achieve for your clients. Equally as important is an awareness that when the Black Hats attempt to use the rules of influence against you, stay strong and have your conscious brain control the decision, resisting the temptation to fall back on the automatic responses to familiar situations.

   *Article based on the information obtained from three books: “Influence” by Robert Cialdini; “Incognito: The secret lives of Brain” by David Eagleman; “Blink” by Malcolm Gladwell.