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Recently I was told by a person trying to convince me that an illogical but emotional appeal will have no effect upon a jury because logic has a way of overcoming emotional decisions.  I wondered if that really could be true since I have always believed that persuasion involves one part logic and two parts emotion.  I set about to investigate this issue and thought I would report some interesting observations about logic.

Before I show some observations, I would like you to answer logically and as quickly as you can, does the conclusion follow from the premises?

All roses are flowers

Some flowers fade quickly

Therefore, some roses fade quickly.

According to research, the majority of subjects would endorse this syllogism as correct.  The reality, however, is that the logic is flawed.   This is simply because it is possible that there are no roses among the flowers that fade quickly.

In this example, the plausible answer comes quickly “logically.” Overriding that logic, however, is hard work.  According to author Daniel Kahneman, in the book Thinking Fast and Slow, “This experiment has discouraging implications for reasoning in everyday life.  It suggests that when people believe a conclusion is true, they are also very likely to believe arguments that appear to support it, even when those arguments are unsound.” 

According to Mr. Kahneman, there are two systems of “logic” or “thinking.”  Both are in use all the time.  System 1 — intuitive thinking; and system 2 –analytical thinking.  At any time, the mind can switch between the two, yet the person believes that he or she is still being analytical.  People accept system 1 conclusions unless forced to recognize the answer in system 2.

Take another example.

here is a simple puzzle. Do not try to solve it but listen to your intuition:
A bat and ball cost $1.10.
The bat costs one dollar more than the ball.
How much does the ball cost?” (p. 44)

Probably, the number ’10’ came to your mind. The correct answer, you think, is 10 cents.

But the correct answer is actually ‘5’ – 5 cents. System 1 intuitively takes control and answers 10.’  Only when system 2 gets to hard work, will the real answer come about. 

In this study, more than 50% of students at elite and intellectual colleges such as Harvard, MIT, and Princeton gave the intuitive—incorrect—answer. At less elite universities, the rate of incorrect answers was in excess of 80%.

The consequences of this “logic” is staggering in the legal field.  First, juries are not necessarily the elite thinkers.  They are a group of unwilling participants who are comprised of all demographic parts of society.  They — just as the average college student — are more likely to succumb to the easier path of intuition.

Second, when trying to persuade a jury or others, you must be aware that a logical argument may not be the right course to persuade them to the decision.  The reality is that the argument should have the appearance of logic so that the jury can accept it as being logical even though it may not be logical.  Is that logical?  Maybe, but it sure is intuitive.  You need to combine both a logical element and an emotional element in every argument.

By Steven G. Mehta


By Steven G. Mehta

I saw a fascinating post about negotiations and chocolate cake in a recent post by Andrea Schneider on the ADR Prof Blog.  I also want to thank Professor Schneider for bringing this issue to everyone’s attention.  The post addresses an article in the Wall Street Journal that studies the role of emotional responses after information overload.  And the truth is — it doesn’t take much to cause rational overload that then creates an emotional response.   Here is a brief excerpt from the Wall Street Journal Article by Jonah Lehrer

Blame It on the Brain

The latest neuroscience research suggests spreading resolutions out over time is the best approach

Willpower, like a bicep, can only exert itself so long before it gives out; it’s an extremely limited mental resource.

Given its limitations, New Year’s resolutions are exactly the wrong way to change our behavior. It makes no sense to try to quit smoking and lose weight at the same time, or to clean the apartment and give up wine in the same month. Instead, we should respect the feebleness of self-control, and spread our resolutions out over the entire year. Human routines are stubborn things, which helps explain why 88% of all resolutions end in failure, according to a 2007 survey of over 3,000 people conducted by the British psychologist Richard Wiseman. Bad habits are hard to break—and they’re impossible to break if we try to break them all at once.

Some simple tricks can help. The first step is self-awareness: The only way to fix willpower flaws is to know about them. Only then can the right mental muscles get strengthened, making it easier to succeed at our annual ritual of self-improvement.

The brain area largely responsible for willpower, the prefrontal cortex, is located just behind the forehead. While this bit of tissue has greatly expanded during human evolution, it probably hasn’t expanded enough. That’s because the prefrontal cortex has many other things to worry about besides New Year’s resolutions. For instance, scientists have discovered that this chunk of cortex is also in charge of keeping us focused, handling short-term memory and solving abstract problems. Asking it to lose weight is often asking it to do one thing too many.

In one experiment, led by Baba Shiv at Stanford University, several dozen undergraduates were divided into two groups. One group was given a two-digit number to remember, while the second group was given a seven-digit number. Then they were told to walk down the hall, where they were presented with two different snack options: a slice of chocolate cake or a bowl of fruit salad.

Here’s where the results get weird. The students with seven digits to remember were nearly twice as likely to choose the cake as students given two digits. The reason, according to Prof. Shiv, is that those extra numbers took up valuable space in the brain—they were a “cognitive load”—making it that much harder to resist a decadent dessert. In other words, willpower is so weak, and the prefrontal cortex is so overtaxed, that all it takes is five extra bits of information before the brain starts to give in to temptation.

To read the rest, please click here

Ms. Schneider’s comment was as follows:

First of all, I totally get it.  I had a very busy day yesterday with too much going on in my brain, came home to freshly baked chocolate chip cookies from my boys, and four warm fabulous cookies later realized that the diet for the day was a lost cause!

More importantly, I think this also explains why emotions bubble up so regularly in negotiations.  We might think about all of the information rationally and organize ourselves and be completely ready for the negotiation but–once we are at the table and keeping track of all of that important information (like memorizing at least 7 numbers) we are on cognitive overload–we have a hard time keeping down the “emotional” side of our brain.  And our impulses, to respond inelegantly, to assume the worst, or to yell, are much more likely to rise to the surface.  Perhaps if we show up with warm cookies for all…

One of the comments to this post by Susan Yates also provided some insight into this issue:

I heard the same story and it made me think about how many times I have told people learning to be mediators that their job is to handle the process so that the parties could handle their dispute. Here is evidence that the mediator frees up some of the “cognitive load” so the parties can make healthy decisions!

This is a very interesting discussion that addresses the value of a mediator as helping with the “cognitive load.”  The mediator can also help to prevent the emotional process from creating and additional emotional overload which apparently can happen because of the high information and stress factor.

This also helps to explain why people make these decisions that are often emotional.  For example, why do people walk away from a settlement that is only thousands apart.  This emotional connection may start to explain the automatic emotional process that kicks in when the body is under information stress or other stress.

This may also help to support the concept that people will often resort to their tried and tested methods of coping when faced with a difficult situation.  These methods may be a gut emotional reaction that may not necessarily be the right thing to do.

Steve’s Book

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