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By Steven G. MehtaSteve Mehta


There is not a day where you cannot see some type of negative advertisement; and less and less positive political advertisements.  But how do those negative and positive ads really fare in the real world.  The research shows that negative and positive messages can have a substantial impact on the receiver of the message.  This research can also be applied into the everyday negotiations, during mediations, or when presenting arguments to a third party such as a judge or jury.

Most people agree that the ability to maintain trust is a critical part of the negotiation process.  Many people believe that the more that you are trusted, the more likely another person will accept your message.   Recent research, however, has shed some new light on this concept. 

Recently, researcher  Gideon Keren in the Journal of Organizational Behavior and Human Decision Processes tested how negative messages and positive messages affected trust and willingness to accept or buy a statement from one person.   One study, for example, analyzed the same factual message regarding a product, but framed it as either positive (75% lean meat) or negative (25% fat meat) to determine if one message over another was more trustworthy or whether persons were willing to buy the product more based on the type of message.  The study found that people were more willing to buy the meat when framed positively, but trusted the salesperson more when the message was framed negatively.  Strangely, a sizeable percentage of subjects also were willing to buy from the salesperson with the positive message despite the fact that they trusted the person with the negative message more. The phenomenon was called “trust-choice incompatibility.” Even when this study was repeated in different environments, the results remained similar. 

Other research demonstrates that when a person negatively attacks another person or his or her product, the person making the attack is most affected.  The study found that people are less likely to trust the person making the negative comment or message except in circumstances where there is a limited ability to process the information or there is a short period of time. 

Interestingly, much like the judicial process, according to John Geer, PhD, a political scientist at Vanderbilt University, “Politics is a one-day sale.”   In law, just as in politics, the advertisement or message must make a strong impression – and do it fast!  According to a study conducted by Ted Brader, PhD, a political scientist from the University of Michigan, fear ads or negative ads involving fear were the only ones that persuaded people to change their minds.  However, such ads would fail if there was not an environment that would foster the fear.

In another study conducted of every presidential ad between 1960 and 2000, Geer found that negative ads were much more specific because the negative ads “demand evidence.”  Geer further stated, “People are willing to believe the positive messages without evidence.”  The same is not true of negative ads.  Nevertheless, Geer also noted that negative ads can easily backfire.  In fact, one study found that although negative ads could influence some voters to make a favorable change in their position, it also could disenfranchise an equal number of voters in the opposite direction.

 Unfortunately, politics is not the only place where negative messages are made regularly.  In the legal environment, it is difficult to go a day without some type of negative message being communicated in court or a hearing.  Thus, it is important to be able to apply some of this research to the legal environment.

One way this research can be applied in law and negotiations is to make sure to establish trust first, and then make an attempt to persuade.  Thus, provide negative information or weaknesses in your case early on in order to establish trust.  Then, once trust has been established, focus on the positive aspects of your case.  According to the research, this approach has the best ability to minimize the “trust-choice incompatibility.”

Second, focus on what you are trying to accomplish with the message you are communicating.  Are you trying to persuade or are you trying to develop trust?  Are you trying to change the other person’s mind?

It is important to note that lawyers are under a significant time constraint to present their position; whether it is to the judge, the jury or the mediator.  Just as in politics, they have one day (and sometimes less) in which to persuade both the other side and the neutrals of the validity of their position.  As such, sometimes it is difficult to avoid attacking the other side’s case.  Nevertheless, when trying to convince third parties such as judges, or neutrals, make sure that you focus on the strengths of your case and not necessarily the weaknesses in the other party’s case.  For example, instead of claiming that the other side cannot prove causation, you might reframe the issue as you having a strong defense based on causation.  If, however, you must attack the other side’s case, reframe the attack first by identifying a small weakness in your case, and then attack the other’s position.  By doing so, as shown in the research, you can establish trust as a credible source of information, which could assist you in delivering your negative message about the other side.

Further, as noted above, if you have to go negative, then you must be precise and support your statements with evidence.  This can be achieved by the use of demonstrative evidence such as documents, depositions, photographs or video.  For example, in one personal injury case the defense accused the plaintiff of making up some or all of her complaints of injury.  The defense then proceeded to provide the video evidence showing the truth of their statements.  That negative ad or message had a significant impact on both the neutral and the party who was being attacked. 

In addition, the negative message forced the plaintiff to change her position.  This was partly based on the fact that the negative message targeted the fear of losing in the plaintiff.  By providing the specific information, the defense achieved the effect of creating doubt in the plaintiff’s mind as to the outcome of the case. If, however, there was no specific evidence of such allegations, then the plaintiff would not be in the right environment to understand the full significance of the message.

Negative ads or messages can be very powerful while at the same time very dangerous.  Even in today’s political environment, the politicians may not fully understand how the advertisements are affecting their audience.  It is important, however, to make sure that you focus on your message first, and then consider what effect you desire to achieve by going negative.  But remember, just as in politics, one who lives by the sword can also die by the sword.

Modified from my prior article in November, 2008 Los Angeles Daily Journal



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