By Dr. Ken Broda Bahm:
Here’s a riddle for you: Going into the midterm elections, approval ratings for Congress hovered at just around 14 percent, yet the win rate for Congressional incumbents was 96.6 percent. How can we reconcile those numbers? Americans have an incredibly low opinion of the institution, yet overwhelmingly return the same people to do the job. The complicated answer probably lies in a combination of embarrassingly low turnout, as well as higher name recognition and a whopping fundraising advantage for incumbents. But part of the reason also has to do with the uniqueness of aggregate evaluation: We judge differently when looking at groups versus individuals. That means that we can hate Congress and still love our congressman.
That tendency is so well-established in American political science that it has earned its own name: “Fenno’s Paradox,” after University of Rochester political scientist Richard Fenno Jr. It refers to the belief, frequently observed especially in midterm elections, that people will typically disapprove of the U.S. Congress even while they are more likely to typically support their own congressman. The more general principle applies in other settings as well. When it comes to public schools, for example, parents are likely to dislike the public school system while, at the same time, liking their own school. This tendency for general evaluations to differ from particular ones has some implications for litigation. Jurors, for example, can hate “corporations” while still loving a particular company or its executives. Alternately, they can distrust “plaintiffs” and “lawsuits” while, at the same time, believing that the one suit they’re seeing is the exception to the rule. This post will share some ideas on the litigation implications of Fenno’s Paradox.
Loving the Congressperson but Hating the Congress
The home base for Fenno’s Paradox, the U.S. Congress, provides the most obvious case study. If the same people are simultaneously hating Congress and returning their own congressperson, then there are reasons to suspect that they are voting for reasons other than support. For example, they’re pulling a lever based on party alone, or they feel the “other guy” is worse. Or, they might feel that their own district’s representative is one of the few trying, against the odds, to “Get Washington Working Again…” Psychologically, there are reasons to suspect that this kind of “exceptionalism” is at work and it isn’t necessarily an illogical bias. As we gain more information about our local representative, we are less likely to rely on broad abstractions about Congress and more likely to rely on actual information about the officeholder. Greater attention, of course, won’t always work to the representative’s advantage. One paper (Bawn et al., 2012), for example, showed that when districts and media markets overlap so as to create a more highly informed voter pool, that tends to result in a lower reelection rate for those officeholders who are farther from the political center.
Hating the “Corporation” but Loving the Company or the Executive
I have researched anti-corporate attitudes for more than a decade, and have demonstrated a consistent long-term trend: Majorities are prone to lean against the corporation in a hypothetical case pitting a corporation against an individual, and more than eight in ten will say that a typical corporation will be dishonest in order to make higher profits. There is a pretty durable bias against the “corporation” as a general abstraction. But when asking about specific companies, the views are more favorable than you might think. Based on some polling, for example, a number of big-name corporations have very high favorability ratings, with names like Walmart, McDonalds, General Motors, United Airlines, Target, and Johnson & Johnson all having majority approval rates over 70 percent. In addition, we have consistently found that a single good boots-on-the-ground company witness can dramatically improve the image of a corporate defendant in a trial context.
Improving the Evaluation
Guarding against a possible negative evaluation often means talking your target audience (judge, jury, or arbitrator) down from any generalized presumptions they may have about you and toward a more specific and informed view. That improved perception can be partly a factor of just learning the case over time, but here are a few considerations or possibly new ways of thinking about it.
1. Climb Down the Ladder of Abstraction
We have written before that moving down the “Ladder of Abstraction” can aid in comprehension. If, for example, you think of a spectrum with an abstract notion like “breach of fiduciary duty” on one end, and a concrete act like “your lawyer secretly negotiating with the other side” on the other end, then you can always promote better understanding by moving your language and your explanations toward the concrete end. When it comes to evaluating parties, moving down the ladder doesn’t just improve comprehension, but also leads to a more specific and informed evaluation.
2. Humanize
When presidential candidate Mitt Romney famously shared that “Corporations are people, my friend” he seemed to have been not so much invoking the controversial legal principle that a corporation has personal rights and interests, as stating the obvious that corporations are made up of people. That is something we tend to forget when we are broadly evaluating the company as a simple two-dimensional character in a trial story. Meeting the people involved, particularly the ones who took action and made the choices at issue, the assessment changes. Humanizing, of course, can be positive or negative…depending on the human. But a well-chosen and well-prepared company witness can substantially improve the “corporate” image.
3. Assess as Specifically as You Can
We all vainly want to believe that the more we are known, the more we are appreciated (or perhaps that’s just true of bloggers). Ultimately, though, we won’t know if a more specific, human, and concrete view will help or hurt. That is a reason to test perceptions. Find out what the jury-eligible population thinks, not only about the general issues, but about the specific parties as well if they’re known. In a community attitude survey, don’t just ask about “plaintiffs.” Instead, give a few sentences on the circumstances of the plaintiff in the specific case and ask about that. In a company-defense mock trial, provide enough of the defendant’s back story that jurors are able to react concretely. In politics, Fenno’s Paradox might cause us to shake our heads, but in litigation, the potential to react more favorably to the individual can be an important tool.
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Other Posts on Making Things Concrete:
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Bawn, K., Cohen, M., Karol, D., Masket, S., Noel, H., & Zaller, J. (2012). A theory of political parties: Groups, policy demands and nominations in American politics. Perspectives on Politics, 10(03), 571-597.