By: Dr. Ken Broda Bahm –
With our current nationwide surplus of wintry weather, it has become a familiar feeling: The car you are driving loses traction and starts to slide. Your every impulse is to wrench the steering wheel hard in the opposite direction. Then the voice of your long-ago high school drivers’ ed teacher enters your brain: “No,” he says with an unnatural calm that only high school drivers’ ed teachers and Buddhist monks are capable of, “first steer into the the skid, regain traction, and then steer back onto the road.” And in this case, acting against impulse and doing what feels counter-intuitive actually works.
As you might have suspected, there is a parallel in creating a litigation strategy when your case includes some slippery weaknesses. Your every impulse will be to steer in the direction of your strengths, but according to both experience, as well as recent research, your strategy is best when it actually orients toward your weaknesses, acknowledges them, puts them in context, and potentially turns them into strengths. Jurors are more likely to feel that their own perceptions are validated, more likely to see you as credible, and as a result more likely to pay attention to your advocacy when you react to a problem by at least initially steering toward it.
Savvy advertisers know that strategies that only speak to positives are unlikely to resonate with skeptical viewers. So we have the beer personality for Dos Equis who “doesn’t always drink beer” and the pizza from Domino’s that the ads acknowledge have been, well, not high cuisine. More recently, there is even a clothing company, Patagonia, that is encouraging you to get by with fewer clothes and to repair your threads instead of throwing them away. The idea is that this kind of “argument against interest” works initially to cut through the clutter, to surprise the audience, and to gain traction with a particular group. The positive argument becomes all the more believable when we know that the source is willing to admit to the negative.
We can see that tendency as well in contexts that are oriented toward arguments rather than sales. Correll, Spencer, and Zanna (2004), for example, conducted a study focusing on reactions to arguments and found that when an audience initially hears a message that affirms their beliefs, then they are subsequently more able to evaluate arguments in an unbiased fashion. In other words, if there is a gorilla in the room, and you are hoping to get your audience past that, then it helps to start with, “okay, I know that we all see this gorilla in the room…” One thing that we know from several decades of work in both mock trials and actual trials, is that the weaknesses you see are not likely to escape your jury’s attention. In that situation, you don’t hurt yourself by acknowledging that you see what your jurors see. Instead, you are likely to affirm the jurors’ own perceptions and help your case by buying an opening of attention, through which you can steer your best responses.
Let’s consider an example from construction litigation. Imagine a construction lawsuit where the project was late and over budget, and the developer and the general contractor blame each other. Actually, I think I’ve just described every construction lawsuit. So, to make it more specific, let’s assume that your party, the general contractor, is making a contractual claim for delays caused by others, but has to contend with the argument that some delays are due to the need to re-do some of your own work that was not up to code. So, in other words, in making claims for delay, the GC has a serious problem of hypocrisy or “unclean hands” caused by its own role in those delays.
So, a strategy that aims to steer into that problem instead of avoiding it could mean one of three things:
Option One: Correct the Weakness (or, “I can see how you could see it as a weakness, but it isn’t”). For example, in the construction case, the GC may say,
I admit, it may look bad that we needed to reconstruct some work, but the important fact is that we completed both the original work and the corrections within the float that the schedule allowed. The delays during that time period were due to the developer’s supply problems, as this timeline shows…
Option Two: Minimize the Weakness (or, “It is a weakness, but it isn’t as significant as the strengths”).
The other side is sure to emphasize a delay caused by our need to correct some of our own work. We don’t deny that, that is one source of the delay, but it is important to put it in context. For every day of delay caused by our need to revise work, there were fourteen days of delay caused by the developer.
Option Three: Turn the Weakness into a Strength (or, “this actually makes the case more compelling”).
Yes, in order to err on the side of caution, we did correct some of the work we performed on this project. But, importantly, we aren’t seeking damages for that, and have accepted 100% of the financial losses caused by these changes. That is one thing that separates the two sides in this case: we have taken responsibility for our delays, yet the developer still has not accepted responsibility for his.
Whatever path or combination of paths you take, it is critical to make your weaknesses an important part of your case. There is an attorney I’ve worked with on some large cases, and he once put it this way: “The trick is to find your biggest weakness, and make your case story all about that. Don’t shy away from it, because that will be the way you either win or lose. Your challenge is to find a way to turn the weakness into a winner.”
Correll, J. (2004). An affirmed self and an open mind: Self-affirmation and sensitivity to argument strength Journal of Experimental Social Psychology, 40(3), 350-356 DOI: 10.1016/j.jesp.2003.07.001
Photo Credit: Redvers, Flickr Creative Commons