By Marybeth Herald • June 06, 2016•Writers in Residence
Let me intrude on a lovely June day with some disturbing hypothetical questions (not at all out of character for a law professor). Suppose that you were contemplating a risky medical procedure. In scenario 1, the doctor tells you that, “Of those who undergo this medical procedure, ninety percent are alive after five years.” Alternatively, she tells you, “Of those who have undergone this procedure, ten percent are dead after five years.” Would you give the same answer to both questions? Ninety percent alive is equivalent to ten percent dead so the answer should be the same. But the difference in the way the question is framed changes how people answer the question. The reason why is important for law students and lawyers to understand.
Humans, and especially lawyers, may think they are rational decision makers, but the research – and our experience – shows that we can act downright irrationally on a regular basis without realizing it. As noted earlier, our brain operates on two levels – conscious and unconscious. The unconscious, or fast, part is a lot busier than we may think it is. We develop heuristics or mental shortcuts to guide our decision making, and once developed, we use them quite relentlessly. They work on the whole – we would not get very far if we had to think consciously about the thousands of judgments that we have to make every day to negotiate our way through the complexities of life.
Fast is good until we need to slow down…
But sometimes they lead us down the wrong path. For example, as I discussed in my last post, gut reactions can be a problem with judge, juries, and clients because the gut reaction may be based on incorrect or incomplete information but be difficult to override. The unconscious part is the automatic pilot of our brain. It is reactive – not rational. Its specialty is quick generalizations, not fine and subtle distinctions. So when a careful and thoughtful decision is necessary, it makes sense to understand and possibly override the automatic processes. In my next few posts, I will talk about some of these cognitive biases that can lead us off track when making a decision.
So that brings us back to the issue of framing.
The particular frame (ninety percent alive or ten percent dead) affects the answer because it provides the mental structure that our brain uses to connect to other ideas. In the first example, our brain connects to the idea of survival – a great idea when you undergo a medical procedure. In the second example, our brain connects to the risk of death, not a positive frame when you undergo a medical procedure. Once the brain has this frame highlighted, it is hard for our mind to rid itself of the image. In the medical procedure question, you are focusing on either survival or death, and that infects your thinking about the whole issue. You are more willing to take a risk on a decision where the frame is life, not death. Whether you have that operation may depend on how the doctor asked the question more than the cold hard statistics of survival and death rates.
Should I buy these "organic, high fiber, 95% fat free" potato chips or the broccoli?
Framing is a concept well known and used by politicians and advertisers. Walk down the aisle of a grocery store and see how many snack foods are labelled a “healthy” choice – organic, whole wheat, high-fiber - or other buzz words that may hide unhealthy foods.
Listen to politicians conjure fear, anxiety, hopes, or dreams with the frames they use. Is someone filthy rich or a job creator? Is the oil company plundering the environment or exploring for energy? Woe to those who do not understand framing. Former president Nixon once famously said - “I am not a crook” – that was completely the wrong frame to use because he focused the listener’s brain on the word crook. Of course, he should have said “I am an honest person.”
Persuading through better framing
Lawyers and judges also use framing to persuade. They understand, as survey takers understand, that how we ask the question or state the proposition influences the answer. Consider the next time that there is a dissent in a case you are reading and note the frame each side uses. For example, both Bowers v. Hardwick (1986) and Lawrence v. Texas (2003) involved consensual sex in the privacy of the bedroom. In each case, the Supreme Court considered whether the state’s law criminalizing sodomy violates the US Constitution’s due process guarantees. In the first case, Bowers, the Court more specifically stated the issue was, “whether the federal constitution confers a fundamental right upon homosexuals to engage in sodomy.” One can guess from the framing - is a particular sex act was protected by the Constitution? - that the answer was “no.” In the later Lawrence case, the court employed a much broader frame that focused on whether the Constitution protected a liberty interest in intimate personal relationships. That frame resonates more broadly. Lawrence came to the opposite conclusion, re-framing the right and overruling Bowers.
Conclusion: Words Matter
How you describe the issues and facts, and the questions you ask witnesses may determine the result. Asking a witness how fast a car was going when it _______ the other car, may yield a different result depending on whether you fill in the blank with “smashed, bumped, hit, or contacted.” Are you prosecuting a juvenile delinquent or defending a child? Each may be a fair description but the images that are evoked in the listener’s mind are powerful and will influence their view of your argument.