In one of my previous posts, a reader asked about a new theory called Argumentative Theory or Argumentative Reasoning. I thought it would be helpful and enlightening for some if I posted the basics of this theory. Although this theory meshes well with older concepts such as confirmation bias, the theory in itself was just recently published in Behavioral and Brain Sciences in an article written by Hugo Mercier and Dan Sperber titled “Why Do Humans Reason? Arguments for an Argumentative Theory.” I do not necessarily endorse this theory. I merely provide information as food for thought.
The theory states that humans reason not to discover truth or work toward that end goal, but rather to win arguments. Reasoning therefore may not seem “reasonable” at all – it can be very irrational and actually lead people further away from what we normally would consider rational. This is where the theory meshes nicely with confirmation bias. Confirmation bias states that people will alter information to fit their prior beliefs, sometimes forgetting information that is inconsistent with their beliefs or exaggerating information that is consistent with their beliefs. With Argumentative Theory, people may be doing the same thing for the same purpose – to hold fast to their beliefs and make the world around them conform to those beliefs. This theory challenges the idea that reasoning should lead to better decisions.
The theory also meshes well with other evolutionary theories such as those espoused by David Ball in his book, Reptile or Rapaille’s Culture Code. Under Argumentative Theory, the evolutionary reason for reasoning is to help us convince others of our arguments and to be on guard when others try to convince us of theirs. This is a self-preservation mechanism. If your view of the world is wrong and you are making decisions based on that view, then you are in danger. If you can convince others that your view is correct, however, you are safe.
Putting the theory into practice for trail strategy purposes, you need to be aware of the pre-existing beliefs of your jurors. Try to make the case fit within those beliefs. Read Rapaille’s book and understand what codes are associated with various people or things within our society. Run focus groups and find out what jurors think about topics associated with your case. If jurors believe that doctors are caring, competent people, then show that you agree with those views and then show how the defendant doctor did not conform to those ideals. Contrast what the defendant doctor did with how other doctors acted.
Realize that jurors are going to argue to keep their world consistent. Work within that consistency and you will do a much better job at “arguing.”