Your Trial Message

You’d Better Be Good (But If Not, Presenting the Naughty With the Nice Makes For a More Credible Trial Story)

By Dr. Ken Broda Bahm:

Santa Mug

Your honor, this pattern of making a list for those deemed “Naughty” and “Nice” has the clear and foreseeable consequence of disparate treatment – namely, coal and switches – for those in the former cateorgy, and can only be seen as a persistent (annual) and intentional (he ‘checked it twice’) pattern resulting in the intentional infliction of emotional distress.”  

Before you assume that I just didn’t get what I wanted for Christmas, there is something to be said from a legal persuasion standpoint against the segregation of the naughty from the nice.  Almost inevitably, there will be weaknesses and bad facts in your case.  Smart lawyers know that denying or ignoring the warts of your case just makes them grow.  In nearly all cases, focusing only on the “Nice,” by asserting that you did everything right, leads to distrust, while acknowledging a little “Naughty” and a few missteps helps you bank a bit of credibility.  And new research backs that up.  In this post-Christmas post, I will look at the implications for trial strategy coming from a new study showing that mixing positive and negative content actually reduces bias against a target group more effectively than positive content alone.  

The Study:  Mixed Messages Reduce Bias

A group of French and Canadian researchers (Brauer, Er-rafiy, Kawakami & Phills, 2011) conducted five experiments looking at different portrayals of an “out group” of racial minorities, and evaluating the effectiveness of those portrayals in reducing prejudice.  While that is not always the same kind of bias that parties face in court, the stretch isn’t that great.  Plaintiffs, for example, are often stereotyped as pursuing frivolous claims based on an absence of personal responsibility.  Corporate defendants, for their part, can be stereotyped as large and faceless entities who care more about profits than people.  The researchers in this study used posters containing photos of African-American or Arab men and women, with half of the participants seeing posters characterizing the people positively (warm, sociable, optimistic, joyful, generous, honest, serious, and intelligent), and the other half seeing posters portraying a mix of positive and negative traits (warm, cold, optimistic, pessimistic, generous, stingy, joyful, and sad).

Aside from thinking how touchy it must have been to get that study past a human subjects committee, the results are interesting:  Those viewing the mixed message poster expressed less explicit prejudice and less implicit bias.  It was viewed as a more acceptable message overall and created less reactance, or counter-argument.

While the result might seem counterintuitive, it stands to reason that a group viewed as more heterogenous in nature is going to be less of a target for biased or prejudicial assumptions.  According to Eric Horowitz in the blog Peer-Reviewed By My Neurons, the research “shows how regardless of whether you’re protesting Wall Street, government spending, Bashar al-Assad, or the re-design of your favorite social networking site, it is critical that your group be viewed as a heterogenous movement made up of different people.  Differences make your group genuine, believable, and more resistant to stereotypes.”

Recommendations:  Present Your Mixed Message in Court

1.  Admit the Inevitable.  When you’re pretty sure, based on experience or mock trial research, that you are likely to lose a fact, argument, or claim, consider admitting that up front.  It is not a damaging concession if any jury or judge is likely to get there anyway.  It may help your credibility more by surprising your fact finder with your candor than by fighting an un-winnable fight.

2.  Think Broadly About Weaknesses.  Sometimes, it can be hard to think of something to admit to.  In the Toyota unintended vehicle acceleration cases, for example, the car maker may feel that, with a comprehensive U.S. Department of Transportation study finding “no electronics-based cause for the unintended high-speed acceleration in Toyotas,” there is nothing to admit  — it is all driver error.  However, one position the company could take is to say, “The only reason this controversy has persisted is due to the company’s secrecy over its electronic data.  While it is natural for any company to protect its secrets, in retrospect, Toyota should have opened its books far earlier.”  If you think not just about the claims, but about “how did we get here?” you may find more opportunities for the honest expression of mistakes.

3.  Start Talking About Heterogeneity in Voir Dire.   When permitted, walk the jury through a broad-based discussion of the forms of bias most likely to affect your client at trial.  An emphasis on differences within the stereotyped group can help reduce bias.  For example,

Some people tend to believe that large companies are much the same across the board, while others believe that there are important differences in policies, cultures, and practices of corporations.   How many of you are closer to that first group:  Big corporations are pretty much the same?  … And how many of you are closer to the second group:  Large companies have important differences? 

Or

What do you think about people who bring lawsuits?  …  How many of you agree with Ms. Johnson, that it depends on the case? 

Among active litigators, there is broad awareness that emphasizing different traits and admitting to safe areas of fault can often be wise moves, but it be can harder to put that into practice.  Good attorneys are nothing if not zealous advocates, and zealous advocates are often on the track of 100% offense or defense, a track that can make it “feel wrong” to admit to a weakness.   Research and practical experience, though, suggests that honestly and strategically presenting a mixed message can be more persuasive in the long run.

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ResearchBlogging.org Brauer, M., Er-rafiy, A., Kawakami, K., & Phills, C. (2011). Describing a group in positive terms reduces prejudice less effectively than describing it in positive and negative terms Journal of Experimental Social Psychology DOI: 10.1016/j.jesp.2011.11.002

 

Photo Credit:  Kevin Dooley, Flickr Creative Commons