By Dr. Ken Broda-Bahm:
There is a case currently playing out in the Southern District of New York, Major League Baseball Players Inc.,v. Underdog Sports, Inc. There is a common dynamic called out right there in the caption: One side is the “Major League” while the other side is the “Underdog.” A version of this comparison plays out in a number of civil cases, with one side seeming to have a superior level of power and control while the other seeks to fill the role of the less influential but more appealing underdog. In a recent article in The Jury Expert, “The Underdog Effect,” First Court consultant Kristi Harrington writes that we tend to root for the underdog “because we may feel a sense of empathy and connection with those who are perceived as weaker or less powerful.” When the powerful fall, or when the less powerful are elevated, that can often provide a sense of satisfaction or justice as the prospect of the scales being brought back into parity.
In her research, Harrington looked at “March Madness” picks and documented a strong tendency among mock jurors to want to root for the underdogs, a tendency that applies beyond college basketball and matters in litigation as well. Recalling the research in one case, she notes, “The plaintiff in this case had a wealthy lifestyle that was displayed to the jury through testimony and videos. Almost all of the jurors commented on the fact that they could not afford such expensive cars and boats. As the deliberations went on, those comments turned to contempt. Ultimately, most jurors declined to award the plaintiff any compensation for his claimed injuries even though there was strong anti-corporate defendant sentiment at the beginning of the case.” Despite it being an individual versus a corporation case, the individual did not fit the appealing underdog role. In this post, I will aim to add to Harrington’s observations by identifying and explaining a common set of factors that mediate whether a given party is likely to come across as the overdog or the underdog.
I do not think it is a given that any party will necessarily fit into either of these boxes: The plaintiff won’t necessarily be viewed as the underdog, and the defendant isn’t necessarily the overdog. Instead, I think it will depend on the story, and each party’s role and characterization within that story. Based on many years of mock trial research, I believe that there are four factors that influence how a party is viewed in these terms.
Size
The first and most obvious sign is the perceived size of the party, with the smaller party being the likely underdog candidate. While it may actually matter at an individual level (with larger and taller people being seen as more capable and powerful), it applies more easily to an organization: How large is the company? How many employees? What is the scope of their operations? What is their ‘footprint’ in the marketplace? These are likely to be immutable facts, but based on emphasis and repetition, the image of a large organization can be played up or down.
Power
More important than size is influence and control, with the less powerful party being the underdog. Power can be a subjective trait, but jurors will likely look at several factors: To what extent is this party able to make its own choices or even impose its will on others, or to what extent are they directed or constrained? Are they able to influence not just the other party in litigation, but the community or the market in general, or do they have to follow? Do they have the knowledge to exercise that power, or has it been kept from them? Do other actors defer to this party, or not? Part of power is also the existence of options: Did the party have many paths they could have taken, or just one? The greater the potential power, the less they’re the underdog.
Adversity
The one factor that may have been the strongest in Harrington’s analysis of “March Madness” picks is whether a party faces adversity or not. It is more attractive to root for the Cinderella team that seems to have faced an uphill climb. The fact that the party has had to fight for what it has brings some measure of justice to the narrative. Even a large and powerful party can have faced the need to have struggled to get to where it is. The story of that struggle can win a bit of sympathy and understanding from a jury, reframing that power as something that was hard-won, and never a certainty.
Alignment
The final factor in a potential underdog perception may be less obvious, but it is arguably the foundation for all of the others: to what extent does this party align with the jury’s own self-perceptions? Do you hold values in common? Are you working, at some level, toward the same goals? The reason we are motivated to support an underdog is that the underdog is more “relatable” to us. Because we often see ourselves in a position of reduced power and facing challenges, we can identify with the party who can also portray themselves as being in that boat. Ultimately, the dominant party is seen as being something distant or “other,” while the underdog is someone more like us. The more that a party or a witness can create common ground with an audience — judge or jury — in a case, the more that audience will want to support them.
In the end, the arguments in a legal case are likely to focus, properly, on the party’s actions: Did the plaintiff protect themselves and behave responsibly, did the defendant exercise reasonable care? At the same time, parties need to devote attention to character and credibility as well, and ask, “What role am I playing in the story?” The choice of which litigant is going to be viewed as the more attractive and relatable underdog may be up for grabs.
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Other Posts on Trial Story:
- Use Narrative Persuasion
- Account for a Motivation to Discount the ‘Official’ Narrative
- Don’t Get Lost in Your Own Story
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