by: Dr. Ken Broda Bahm
So the company finally terminates the troublesome employee. “Problem solved,” right? In a litigious climate, the answer could be, “Wrong, the problem’s been replaced by a different problem” because what follows could be months or years of discovery, deposition, and developing strategy before you find yourself explaining that decision to a jury, judge, or arbitrator. And in that long series of steps leading up to your day in court, the facts can accumulate like snowfall in the Rockies: dates, documents, people, and policies all contributing to a picture that gets more complicated every day. What started out as a cut-and-dried decision has now become an elaborate network of legal arguments and counter-arguments, making the jurors struggle just to try to put themselves in the place of the individual making that termination decision.
But it doesn’t have to be that way.
Instead, trial lawyers and in-house counsel can work together from the beginning to craft a clear message that keeps the focus on the simple story. Experienced litigators have long known that there is a practical advantage to simplicity, but researchers are increasingly finding out that it is a cognitive advantage as well. A recent PsyBlog post reports on eight studies about “cognitive fluency,” or the “ease of thinking” that accompanies a message, demonstrating the sometimes surprising power of simplicity in a variety of contexts. For example, one study found that the more difficult a given word is to say, the more danger is associated with the concept the word represents. Importantly, it is not just a matter of comprehension. Litigators often get to the point of believing, “yes, it is complicated, but once I explain it, they’ll understand.” That may or may not be true, but in one important way, it misses the point. It isn’t just that the fact-finder doesn’t get your explanation, it is that the more complex the information is, the less it is enjoyed, preferred, and remembered by the receiver of that message. Listening is not just a logical exercise, it is an aesthetic one as well. If the listener doesn’t like what they’re hearing, then they don’t attend to it, even if they are otherwise intellectually capable of understanding it. And one barrier in an employment case can be the simple experience-based tendency to side with the employee.
And that support creates a certain “noise” as jurors are attending to the company’s message. Rather than adapting to that situation by sticking with the most simple story, attorneys and especially the decision-makers themselves, can fall prey to the temptation to elaborate the case against the terminated employee. In other words, on the day of termination, the issue was just frequent lateness. Now, however, as the litigation has drawn on, there were also problems with performance, conduct on the job, and attitude … and we think he might have been stealing too. But the elaborate case is going to be a lot less credible than the simple explanation, particularly if it looks like it was crafted after the fact. Nothing makes it look more like the company has an axe to grind than a willingness to augment the story after the fact.
While most attorneys already understand the “keep it simple” mantra, it is much harder to put it into practice. Why? Because there are a number of reasons why litigators who might be starting with a simple message, end up burying it in complexity by the time they get to trial:
1.) “I want to give them as many routes as possible to my desired verdict.” Wrong: multiple independent rationales just increase the likelihood of perceived inconsistency.
2.) “If I’m not painstakingly accurate and complete, the other side will call me on it.” Maybe. But if the jurors understand and accept your version of events (which they are more likely to do if the story is as simple and straightforward as possible) then this focus by your opponent is going to seem like nit-picking.
3.) “I will appear smarter and more prepared if I have a very detailed and complicated argument.” That rationale may not always be verbalized, but like all academic over-achievers, lawyers want to look good. But at least one study shows that complicated language actually decreases attributed intelligence.
In the end, the simplest route is… simplicity itself. Once the termination decision is made, 1.) carefully record the decision and the rationale, then 2.) leave it alone instead of elaborating it, and 3.) respond to each claim the plaintiff makes while repelling all efforts to move away from the clean and clear decision that was originally made.