By Dr. Ken Broda-Bahm:
A surefire path to greater credibility is to meet every high expectation, but a close second is to defy low expectations. That is an important lesson for litigators, and that is also what presidential candidate Ron Paul has in common with Denver quarterback Tim Tebow: the ability to do a lot better than most people had expected. No matter what you might think about the persona and policies of the unusually libertarian Texas Congressman, his ability to come in as a strong second in Tuesday's New Hampshire primary provides a compelling answer to those who considered him footnote in this race. And no matter what you think of the persona and the play of the unusually prayerful ex-Gator, now in the Mile High City (Go Broncos!), his ability to pull a rabbit out of the hat in fourth quarter or overtime these past few weeks has been a pretty convincing answer to his many critics.
Like Ron Paul and Tim Tebow, litigators also suffer from low expectations. For many jurors, the very fact that you're in litigation — whether as a plaintiff or defendant — means that you've done something wrong. Plaintiffs carry the expectations of low personal responsibility, frivolous claims, and greed. Defendants carry the expectations of wrongdoing, callousness, and like plaintiffs, greed. But for both parties, there is a silver lining to low expectations: Crafting a trial message that exceeds those low expectations is a great way to build credibility and encourage your audience — jury, arbitrator, judge, or mediator — to listen to you with fresh ears and an open mind. This post looks at the psychology of violating expectations, and makes recommendations for both plaintiffs and defendants.
The Ubiquity of Low Expectations
We see it in every mock trial: Jurors are primed to find fault with both parties, and frequently arrive at a feeling of "a pox on both your houses" after hearing from both sides. The defendants are dishonest and the plaintiffs failed to protect themselves. The narratives of high profile trials, as well as the messages promoted by both the plaintiffs' and the defense bar, ensure that no one is walking into the courthouse as a blank slate: Jurors think that they know what litigants are like before they ever meet them. As a result, fact finders will often look for evidence that confirms their central casting images of shady defendants and frivolous plaintiffs. The information supplied by the other side ensures that there will be at least some information that confirms that perception in every case.
The Advantage of Beating Expectations
However, one important bit of good news is that when you succeed at countering a low expectation, that does more than just get you back to the fifty-yard line, it actually propels you into positive territory. The social scientists call it "Expectancy Violations Theory," and suggest that information that unexpected messages or behaviors will, in the right circumstances, lead to greater processing. If these unexpected messages are clear and credible, they can cause your audience to think again and provide a substantial boost in credibility. One study in this line of research (Meltzer & McNulty, 2011), for example, started with the cultural stereotype of females being more "nurturing" and males being less so, and manipulated the descriptions of hypothetical male and female university professors, describing them in nurturing or non-nurturing terms. Instead of the nurturing quality being an equal benefit to either gender, it actually benefited the male professor significantly more. Why? Because it violated a stereotype and beat a low expectation.
Corporate Defendants: Beat Expectations by Being Less "Evil" Than Expected
We have written extensively about the low expectations facing corporate litigators. As an indication of how low, consider the following data showing the proportion of our national survey participants who agree with the statement, "If a company could benefit financially by lying, it's probable that it would do so."
While it is never a good thing to be viewed this negatively, there is a silver lining to that distrust. With expectations that low, many companies will find they are able to exceed expectations and improve their credibility in the process. A company in litigation can beat expectations by showing fact finders that it:
Lives by strong internal values, not just on paper but guiding the company's day to day operations.
Embraces positive external goals that extend beyond making a profit.
Exceeds regulations and the common practices of others in the industry, and in this case, did more than it had to.
Accepts the burden in court to do more than simply denying wrongdoing, and instead, proves that it did the right thing.
Plaintiffs: Beat Expectations by Being Less "Frivolous" Than Expected
Of course, few cases that make it all the way to a fact finder can be truthfully declared "frivolous," but that doesn't alter jurors expectation that this might be one of those cases that they have heard about in the news. One effective message to convey to jurors is to initially agree: Yes, you have also heard about those suits, and perhaps you even agree that there are "too many lawsuits" in this country, but you draw a distinction between the abusive cases (that live mainly in the popular imagination) and the case at hand.
I was once advising an attorney who recognized the need to clarify at the very start of opening statement that this was not the frivolous lawsuit that jurors might expect it to be. I suggested drawing a quick comparison to the McDonalds hot coffee case, but the attorney shied away from that, not wanting to "plant" that image in the jury's mind. But the reality is, that it is already very well planted. Still to this day, in nearly every mock trial we conduct, that case is mentioned at some point during the day by at least one of the mock jurors — even in patent cases! It has become a common touchpoint to our cultural understanding of trials. That case, or rather a distorted image of that case, has framed the popular image of plaintiffs from which you need to extricate your client.
The first way to do that is to beat the popular stereotype. For example:
You're expected to begin by building sympathy for your clients. Instead, begin by talking about the defendant, and only bring in your clients later.
You're expected to sound impassioned and aggressive like the lawyers they see on TV. Instead, at least begin by sounding down-to-earth, reasonable, and relatively low-key. Save the anger for when it matters most.
You're expected to be exagerrating damages. Instead, frame your claim as a reasonable mid-point, emphasizing what you are not asking for.
Getting back to Ron Paul and Tim Tebow, time will tell how far they are able to go — whether Tebow and the Broncos will get past Tom Brady and the Patriots this weekend (Go Broncos!), or whether Ron Paul will ever get past the twenty-five percent threshold in support. In a way, however, both have already won in the same way a failing business or a weak economy gets a boost just by doing better than expected. The same applies to parties in court: Beat the low expectation, surprise the listeners a little, and you earn yourself some fresh attention and a better perception.
Other Posts on Source Credibility:
- Experts: Don't Cross The Line Between Confidence and Arrogance
- Don't Wear The Black Hat Lightly: You're Not the Bad Guy Because You're at Fault, You're at Fault Because You're the Bad Guy.
- Persuade Using Both Alpha and Omega Strategies
Meltzer, A., & McNulty, J. (2011). Contrast Effects of Stereotypes: "Nurturing" Male Professors Are Evaluated More Positively than "Nurturing" Female Professors The Journal of Men's Studies, 19(1), 57-64 DOI: 10.3149/jms.1901.57
Photo Credits: JohnE777 (Ron Paul), Jeff Kern (Tim Tebow), Flickr Creative Commons