By Dr. Ken Broda-Bahm:
With the 2024 election now in the rearview mirror, many Americans are still processing the results. The Presidential contest between Donald Trump and Kamala Harris was widely seen as close by both pollster and pundit, and logically at least, many of us believed right up to the end that either side could win. Still, I think it is safe to say that about half the country is in shock over Trump’s close but still-decisive win. A reason why might be that, as much as the race was treated as even, many on the Democratic side still harbored an internal narrative that told them that the man who refused to ever accept the last election’s results, the man who a jury found liable for sexual assault, the man who had racked up 34 convictions along with a slew of unresolved federal indictments across multiple jurisdictions, and a man who seemed to be saying and doing things every day that, in normal times, would’ve been alienating to independents and to traditional members of his own party would ever be returned to office by a majority of Americans.
Yet, here we are. Back in 2020, when the reality did not match the narrative, many Republicans responded by doubting the integrity of the elections. While there are small signs that a few Democrats could follow that story this time, more are saying that it is time to step back and ask themselves, “What was wrong or incomplete in the story we’ve been telling ourselves?” The important thing is, rather than judging reality based on whether it fits our story, we should be judging the story based on how well it fits reality. This risk in putting the story first and the facts second can occur in any field that is driven by communication. And that means every field, including litigation. In this post, I’ll comment on a few ways those who are crafting and following narratives in court risk becoming lost in their own stories.
Who in Litigation Is at Risk of Getting Lost in Their Own Stories?
At its root, litigation is a test of competing stories. The side that wins is the side whose story is more complete, more compelling – and this one ought to be most important – more supported by the facts. This central role for story, however, doesn’t make it the perfect means of communication. Stories can obscure as much as they illuminate, and our common tendency to judge reality through a narrative frame can leave us vulnerable. In trial, that vulnerability can affect several actors.
The Juror Who Relies on Feelings Rather than Facts
The court is intended to be the arena of reason and evidence, but the court is also populated by humans who bring in their more general attitudes and feelings. Generally, that is not so much a problem to be solved as it is a fact of human communication that requires adaptation. But in some cases, jurors can end up feeling to such an extent, that they’re actively putting the facts aside. We see that in some mock trial deliberations with the sympathetic juror who cannot find fault with the defendant, but who still wants to see some aid delivered to the plaintiff in the form of damages. Spotting the jurors who prioritize their feelings over the facts can be important in voir dire.
The Advocates Who Focus on Their Own Best Case Rather than the Other Side’s
Advocates are trained to find the best in their own case and the worst in their adversary’s. That skill is important, but if unchecked, it can lead to a distorted understanding of a case’s real strengths and weaknesses. If the story is, “Everything they say is wrong,” then you’re probably missing a few important chapters. Effective advocates don’t just paint their adversary at their worst, but strive to consider what their adversary’s best case is, and why, even if some parts of that story are true, the adversary still loses.
The Consultants Who See What They Expect to See in Research Results
The point of pretrial research, focus groups and mock trials, is to assess the case and to develop better ways of presenting it. Expectations, however, can be strong. Even before we test it, we think we know from experience what the main strengths and weaknesses are likely to be. When a mock juror gives a different result, it is tempting to treat that individual as an outlier or an aberration. The most important skill a consultant brings is the ability to listen with an open mind and without an agenda. Sometimes the feedback will be idiosyncratic and untrustworthy. But sometimes, the dominant reaction will point to something unexpected, and those moments provide some of the best reasons for testing your case beforehand.
If there is one quality that is key to becoming a sensitive and adaptive communicator, it is the quality of understanding that your perceptions are not reality. Stories are great — or, in any case, inevitable — but be careful that you don’t get lost in your own.
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Other Posts on Narratives:
- Use Narrative Persuasion
- Focus on the “Paths Not Taken” by the Other Side
- Add a Plot Twist to Your Trial Story
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This post is an updated version of a post that first appeared in 2016, but was somehow lost when this publication transitioned from Persuasive Litigator to Your Trial Message. Thanks to a reader, Nathan, for pointing out the omission.