The ethics of subliminal messaging

Handing someone a hot drink will make you appear friendlier. Indeed, an experiment conducted at the University of Colorado Boulder, published in Science, found that "participants who briefly held a cup of hot (versus iced) coffee judged a target person as having a 'warmer' personality (generous, caring)." To conduct the experiment, researchers asked participants to hold either a hot or iced coffee belonging to someone before being introduced to them. The participants had no idea that holding the drink was part of the experiment. And the scientists were not surprised by the outcome-apparently the same part of our brain that forms judgments processes warmth. The study concluded that a person's perceived warmth, along with their competence, "accounts for a large proportion (82 percent) of the variance in people's evaluations of social behaviors." Studies like this appear frequently in science journals these days. But I've been wondering: Is it ethical for us, as lawyers, to use this type of research to our advantage? I can certainly imagine situations where we could use these findings to help our case. While the Court likely won't let me pass out hot chocolate to a jury, I can ask the opposing party to hold my coffee for a moment when they arrive at my office for a settlement conference. I could ask a deponent to hold some warm water with lemon while I hand the court reporter my card. I could even ask a potential client to hold my hot tea as I'm gathering files for our introductory meeting. The Ethical Rules don't speak to these points. Rule 3.4 discusses Fairness to Opposing Party and Counsel, and advises that we should not obstruct access to evidence, falsify evidence, or, at trial, allude to any matter that we do not reasonably believe is relevant. Rule 4.1 demands Truthfulness in Statements to Others, such that we may not, in the course of representing a client, knowingly make a false statement of fact or law. But handing someone a hot drink isn't a false statement of fact or law. It's an attempt to convey a subliminal message of warmth. And in this regard how is it any different than actually being warm in an attempt to gain a new client's trust or effectuate a settlement? I have an answer. Acting warm discloses my intentions to all present while handing someone a warm drink attempts to achieve the same end without the same disclosure. The closeted nature of my actions in the latter circumstance gives me pause. Research on the anchoring effect raises similar alarm bells. The anchoring effect is a form of cognitive bias that causes people to focus on the first available piece of information (the "anchor") given to them when making decisions. It particularly impacts decisions regarding numerical values like settlement value, jury decisions, and prisoner sentencing. One particularly troubling study highlights its massive impact. Researchers gave German judges, with an average of more than 15 years of experience, a description of a women who had been caught shoplifting. Then researchers asked the judges to roll a dice, except that the dice were loaded-every roll resulted in either a 3 or a 9. After seeing their number, researchers asked the judges how long they would sentence the woman to prison. On average judges who rolled a 9 said they would sentence the woman to 8 months in prison; those who rolled a 3 said they would sentence her to 5 months. The anchoring effect was 50 percent. Because I know that floating the first number influences outcomes, I now think about how to frame settlement offers differently. The "midpoint rule" suggests that the best predictor of the final deal is the midpoint of the first semi-reasonable offer and counteroffer. I also think about how to negotiate my own salary differently (even making a joke that you'd like a $1 million salary increases outcomes by 9 percent). And I think about how to present damage theories to juries differently. But I return to wondering whether it is wrong to use the latest science to influence decision making. And I guess I don't think so (although look forward to hearing your thoughts). We have been using subliminal methods to convince for a long time. Aristotle advised us that - to convince the audience of our credibility (ethos) - we should think about our manner of dress and speaking. In other words, the subliminal impact of our manner of dress and speaking. And many of history's best trial attorneys seem to have a natural knack for understanding how to persuade by connecting with people in a way that is not simply based on logic or reason. This is not to say that I'm about to start handing my opponents a hot drink when they walk into my office for a settlement conference. But I do want to know what the research says on this point, so that, should my opponent hand me his coffee to hold, I know why he's doing it. And I do want to share my knowledge on these points with others, so we can all work to get the right outcome, instead of being swayed by biases that can create irrational outcomes. ----- Sybil Dunlop is a partner at Greene Espel. Published: Wed, Jan 30, 2019