In January 2012, Facebook conducted a controversial one-week experiment with approximately 700,000 users in order to determine how the Facebook news feed influenced the emotional state of the users who were unknowingly used as Facebook’s lab rats. An article in The Atlantic described the manipulation this way: “Some people were shown content with a preponderance of happy and positive words; some were shown content analyzed as sadder than average.”
The study found that the manipulated news feed content influenced the users’ subsequent posts. More specifically, the study found that an increase in negative news items led to negative posts and vice versa for positive feeds. While many ethics questions have been raised about this study, one important consideration is that Facebook was ultimately looking at how to keep users engaged. Engagement is critical to Facebook’s business model and this study was just one aspect of Facebook’s realization that emotional content increases engagement. In fact, the profound takeaway from all of this is that Facebook’s algorithms profile users and push emotional content that will increase those users’ engagement with the platform.
It is difficult to overstate the implications of this. A 2021 study by social media researcher Tankovska estimated that Facebook had approximately 223 million users in the United States in 2020, and that number is only expected to grow in the coming years. That is more than half of the entire population of the United States. To put a finer point on it, the majority of the population in the United States is being manipulated on a daily basis by an algorithm designed to elicit strong emotional responses in order to increase user engagement. One problem with repeated exposure to emotional content is that there is a numbing effect, meaning that the emotional trigger must become more and more extreme in order to maintain the same (or in Facebook’s world, hopefully more) engagement. Unfortunately, Facebook has the data and the algorithm to accomplish just that.
This is incredibly important for trial attorneys to recognize because it has several implications for jurors at trial. First, it means the jury pool is being constantly bombarded with ever-evolving emotional triggers designed to maintain and increase their engagement. Jurors are receiving daily news feeds designed to make them feel more and engage more with the platform. It is hard to fully understand the psychological impact this has on the population, but at a minimum, it means that today’s jurors are exposed daily to more emotional triggers than at any point in history. Your jurors are primed to be triggered by something and it is critical that trial attorneys conduct jury research and develop jury selection strategies that help them understand what those triggers are.
Second, it means that it is essential for attorneys to develop their own triggers in their case presentations. Facebook and social media have created a culture where, regardless of political or cultural preference, the new norm for our engagement with society is through triggers designed to create strong, immediate reactions. In fact, this force has become so strong that some studies show a growing number of friendships and family relationships being disrupted by social media conflicts spurred by various triggers.
This relates to something we always address in our case strategy sessions with clients when we talk about central facts. For years, this is how we have described the importance of central facts to clients:
“Central fact selection is critical for three reasons: 1) it establishes immediate credibility by proving something to the trier-of-fact (rather than asking the trier-of-fact to take your word for it); 2) strategically-chosen central facts of the case tell your trier-of-fact everything (s)he needs to know about the case while tapping into psychologically-satisfying principles that drive the way (s)he makes sense of it; 3) central facts corroborate the controlling idea and what a trier-of-fact wants to believe about the case.”
The second reason relates to the concept of emotional triggers. Central facts are designed to serve a symbolic role in the case by speaking directly to fundamental principles held by the jurors. In other words, the best central facts trigger strong emotional reactions that increase engagement in the same way intended by Facebook’s incredibly sophisticated algorithms. Practically, this means that attorneys should put a lot of time into identifying facts and anecdotes in their case that best serve this role of an emotional trigger for jurors.
Finally, attorneys need greater awareness of potential triggers that work against their case. A strong emotional trigger offers jurors a shortcut. It allows them to arrive at quick, principled conclusions about the case with little reflection upon the facts and testimony that might call that conclusion into question. Emotional triggers lead to motivated reasoning and once jurors are engaged in motivated reasoning, the “facts” and the “truth” no longer matter. Consequently, it is critically important for attorneys to understand where the potential triggers are in their case that might favor the other side and develop simple themes and narrative frameworks that mute those triggers.
