By Dr. Ken Broda-Bahm:
Seems like Americans have had it with powerful institutions lately. The organizations that have long structured our civic life have reached new lows in terms of trust, and this applies to many that have historically garnered relatively high levels of confidence. Higher education is at a historic low, and trust in public schools, now a fully partisan issue, is on a downward trend for all groups. On the subject of corporations, the political left has now been joined by the right in having a very low trust in large companies. The media, including both print and broadcast news, have fallen out of favor, and even the military has the lowest levels of trust in decades. Congress hovers at just eight percent approval, and overall, on eleven of the sixteen institutions that Gallup tracks, the trust is not just low, but tanking. Average trust in institutions is about half of what it was in 1979.
The justice system has not been the exception to this trend. Trust in courts and the judiciary is in steep decline as well, and that could be accelerated due to one former President’s efforts to reframe both the criminal and civil court systems as just another arena for partisan power. This is a relatively new condition that matters to litigators who build their cases, in part, on the attitudes that jurors bring to the process. To the extent that the fact finders no longer have built-in levels of trust toward the parties, toward the regulators, or even toward the law and the courts themselves, that is going to change the conditions of persuasion. Today, legal advocates find themselves addressing a public that’s grown increasingly cynical about institutional power. In this post, I’ll share three implications for litigators.
1. Don’t Expect Power to Be Part of Credibility
There may have been a time when one could say, “What’s good for General Motors is good for America,” and at least a sizeable part of the population would agree with you. It is safe to say, we are no longer in that mode. The fact that your client is large, important, influential — those are all factors that are more likely to play a negative role in your case assessment. A message centered on good works still matters, but don’t expect to get a benefit from institutional prominence alone. As a starting condition, that power will be a source of suspicion and doubt, something you’ll need to overcome with a story about the benefits your client provides both generally and especially in the context of the case.
2. You Can Still Persuade
Distrust of institutions is a baseline attitude, and the baseline doesn’t always determine the final result. You might need to overcome some hurdles, but you can still convince jurors that your client is credible, in the right, and worth protecting. There may even be some ways in which lower trust leads to a better attitude toward evidence. A recent study (van Zoonen, Luoma-aho & Lievonen, 2024) for example showed that higher trust in institutions leads to more confidence in ability to verify misinformation, and in the process reveals “a blinding side of trust,” meaning that those with greater skepticism toward institutions are also more likely to understand that they could be victims of misinformation, and more willing to interrogate those baseline assumptions.
3. Rely on Individual Rather than Institutional Trust
Ultimately, you are better off trying your case on the assumption that your jurors won’t fall in love with powerful institutions, but may fall in love with people. So put as much focus on the personality of the company representative as you place on the reputation of the company itself. I recently completed a focus group which had the sole purpose of deciding who would be sitting at the counsel table representing our client during trial. We did that because we knew that our credibility would be shaped more by a personal connection with a witness than it would be shaped by the general attitudes the jurors walked in with. At the end of the day, credibility is going to be personal and not just institutional. This is likely to be particularly true in an age of crumbling trust in large organizations: We may hate the institution, but still like the individual.
____________________
Other Posts on Attitudes Toward Institutions:
- Expect that Jurors Might Think the System is Rigged
- Measure Your Juror’s Faith in the Jury System
- Understand Anti-Corporate Bias: The Extent of the Bias and the Effect of Familiarity
____________________