Category Archives: Public Perception

December 14, 2017

Account for Social Facts

By Dr. Ken Broda-Bahm:

For those defending the reality of human-induced climate change, it is a familiar datapoint: A consensus of 97 percent of climate scientists supports the conclusion that our species is contributing to global warming and other effects on the climate. Climate change skeptics, of course, have their own consensus: a “Petition Project” including some 31,000 who say there is “no convincing evidence.” The latter has been debunked on the basis that signers to the document don’t have to be climate scientists, or necessarily scientists at all. But one might be understandably cynical about whether either side’s consensus figure is going to be convincing to the other. After all, attitudes like these tend to have a documented self-sealing nature, since the presentation of information that might threaten my worldview tends to create a motivation to debunk that information, and that exercise of motivated debunking just makes the original belief even stronger.

Based on recent research, however, there might be an exception to this self-sealing belief system. Based on recent findings of researchers from George Mason and Yale Universities (van der Linden, Leiserowitz, & Maibach, 2017), when presented with information of a consensus, study respondents are more likely to shift their own views in the direction of the perceived norm. Not all of them will do that, of course, but a substantial number, particularly among conservatives, do seem to be influenced by the consensus. This finding, described in a recent release in ScienceDailypoints to a rare bright spot on our current ‘Alt-Fact’ horizon, and it carries some implications for the legal persuader who will sometimes need to win over the skeptical judge or juror. 

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August 21, 2017

Expect Support for Civil Litigation to Vary by Race and Social Status

By Dr. Ken Broda-Bahm:

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Black Americans, especially but not exclusively those on the lower-economic rung, often have a different experience with police and the justice system. That difference makes them more likely to believe they’ve been discriminated against, or to believe more generally, that they get greater attention and less protection from the law. That engenders a general distrust of the criminal justice system which, unfortunately, is a large part of what drives racial bias in strikes by prosecutors. I have written recently about ways to address race-based strikes, but an additional interesting question is whether skepticism toward the criminal justice system extends to skepticism toward the legal system in general, including the sphere of civil litigation. After all, following the Civil Rights Acts, civil litigation now serves as one of the principal ways of enforcing anti-discrimination in the workplace. If the groups that are more likely to face discrimination are also less trusting in the legal tools meant to address it, that would be an important limit on the law’s effectiveness.

Not many studies have examined attitudes toward civil litigation, but a recent study has taken a look. McElhattan, Neilsen & Weinberg (2017) research looked at the views of Latino, African American, and White participants, specifically looking at two hypotheses: A “vigilance hypothesis,” suggesting that minorities are more sensitized to potential discrimination and therefore more likely to see it than Whites, and a “cynicism hypothesis,” suggesting that non-Whites are less likely to favor using the law by filing a claim. Their study found support for one hypothesis, but not the other one. It is an interesting conclusion with some implications both for avoiding litigation in the workplace and for the voir dire of potential jurors on attitudes toward civil litigation.   Continue reading

April 17, 2017

Learn From (the Lack of) Civil Trial Movies

by Dr. Ken Broda-Bahm: 

Civil trials

Movies about courtroom trials are enjoyed by lawyers and the general public alike. The genre has earned its place among the classics with titles like: To Kill a Mockingbird, 12 Angry Men, Witness for the Prosecution, Inherit the Wind, and even My Cousin Vinnie. But there is one commonality in all of those movies: They focus on criminal trials. While there are a handful of films that focus on civil litigation — Philadelphia, Runaway Jury, or The Verdict — they are far fewer in number, and none have reached the same level of pop culture familiarity. Taunya Lovell Banks, Professor at the University of Maryland’s School of Law, recently wrote about that gap in an article, “Civil Trials: A Film Illusion?” (Banks, 2017). Her focus was on the ways such films serve educational and inspirational purposes, transmitting broad messages about the democratic value of civil trials. “Films,” she writes, “are cultural documents that embody a society’s attitudes about, and views of, the law and the jury system.” Most, however, focus on the legal resolution of criminal rather than civil disputes.

Professor Banks links the paucity of civil trial movies with a decline in the civil trial itself. Referencing projects to try to address the decline, like NYU’s Civil Jury Projectshe notes that civil jury trials are well on their way toward “disappearing from the American legal landscape,” and she looks at the effect of a declining civil trial on popular culture, including legal films. It is not that fewer civil trials necessarily cause fewer civil trial movies, or vice versa, but rather that both are linked to some features of the civil trial that seem to resonate less with popular culture. Drawing from several of professor Banks’ arguments, my own observation is that some of the factors that tend to make civil trial movies less common and less influential are the same factors that often make the civil trials themselves less memorable, harder to attend to, and ultimately more difficult to care about. And some of those factors can be addressed through better, and dare I say it, more cinematic trial presentation. In this post, I’ll take a look at those factors and some of the ways good civil litigators can address them.  

So, what makes the civil trial less attractive to Hollywood, and what makes the civil trial more boring and harder to access for the average juror? Informed by Banks’ article, I see four factors. 

1.  Criminal Trials Seem to Be More Fact-Dependent

Criminal trials focus on “who done it.” Banks quotes Anthony Chase noting that the public seems to be “addict[ed] to the facts of crime.” That yet to be answered question on the facts creates natural drama and interest. In civil cases, however, though we continue to call the jurors “fact finders,” the facts themselves are already generally known through discovery, and what is left for the jury is more a task of classification or judgment call: Does the sequence of events that everyone mostly agrees on fit the linguistic category of “negligence” or not? Effective civil litigators can address this by emphasizing the factual disputes that do still exist, and also by framing the case as a mystery to be solved. 

2.  Criminal Trials Have Clear Themes

The theme of a criminal trial most often comes down to justice, in both the movie theater and the courtroom. The question is whether holding the defendant responsible upholds justice or denies it. “Themes of civil films may be less defined,” Banks notes. The civil trial might still focus on questions of responsibility, or even punishment, but when filtered through the law’s language, that civil claim may end up sounding like a more bureaucratic and less interesting determination. Where criminal trials focus on a villain (either the defendant or someone abusing the power of the state to persecute the defendant), that status can be less clear in a civil trial. Of course, one move to rectify that can be found in the Reptile perspective for the plaintiff’s bar, a strategic approach that aims to bring civil trial persuasion back to a clear theme focused on protection and a clear villain who is causing an unnecessary level of danger.  

3.  Criminal Trials Are Explicitly Tied to the Interests of Larger Society

It also matters that criminal trials are framed as “the People” versus the defendant. Taking a case is a prosecutor’s call, but symbolically, it is an act on behalf of the whole community with the express goal of making that whole community safer. In contrast, Banks notes that “In real life, few civil law plaintiffs sue with the idea of securing justice for the larger society.” She cites the example of 735 California lawyers who tried cases to a jury in 1990 or 1991. Only three of those lawyers identified a desire for public vindication as a reason for trying the case — two of them referring to the same case. While outcomes in civil litigation certainly have the potential to impact people other than the plaintiff, that focus is often absent, and is formally discouraged by the rules of evidence. Again, the Reptile perspective is a useful example of where litigators can try to broaden the implicit frame of reference for a case so as to emphasize a way that it holds relevance to society in general. While that approach is favored by plaintiffs, usually aiming to protect the vulnerable, that framing can also be used by defendants who, after all, are also fighting for something that society depends on: medical judgment, products that make our lives better, or contracts you can rely on. 

4.  Civil Trials Are More Likely to Tap Into Animosity About Lawyers and Lawsuits

There is a nobility to a criminal trial’s focus on who did the crime, and whether the state can properly make that person do the time. The effect of a civil trial, in contrast, is more likely to be about economics rather than the stark fate of someone’s liberty. As a recent mock juror summed up when asked what the civil case was about: “Rich guys fighting over money.” That sentiment applied to counsel, to parties or to both, taps into the worst attitudes that jurors bring regarding lawyers or courtrooms. In Banks’ review of films that do focus on civil litigation, she notes that most of these films are decidedly negative toward the process. Common themes contained in movies about the civil courtroom, for example, focus on innocent victims of corporate unaccountability, armies of defense lawyers overwhelming an unprepared plaintiff, and victory generally being obtained outside the system. “Any positive outcome in these cases,” she notes, “was achieved despite the formal legal system.” Litigators have heard it before, of course, but this low opinion of civil litigation and litigators serves as a reminder to avoid stereotypes and to, if possible, tie your case to a noble purpose, or at least some kind of motivator that jurors can identify with. 

Given the increasing scarcity of actual civil trials, it’s no surprise that movies about civil trials are also scarce. As the author notes, the public event of trial resolution is increasingly being replaced by resolution in a private space: settlement, arbitration, or mediation. That’s a loss, I believe, not just for drama but for civil engagement in our democracy. But civil trials haven’t died out quite yet, and in the meantime, those cases can be tried a little more effectively by applying some of what makes for great cinema.  

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Other Posts on Law and Popular Culture: 

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Banks, T. L. (2017). Civil Trials: A Film Illusion? Fordham Law Review, Vol. 85.  University of Maryland Francis King Carey School of Law, Legal Studies Research Paper No. 2017-1. URL: http://ssrn.com/abstract=2912987.  

Image credit: 123rf.com, used under license, edited

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May 23, 2016

Call Bull on Media Representations of Trial Consultants

By Dr. Ken Broda-Bahm: 

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Every once in a while, popular culture rediscovers the idea that trial consultants exist. In 1995, it was the O.J. Simpson trial, then in 2003 it was the John Grisham novel turned movie, Runaway Jury. In the years between and since, that attention has been sparked periodically during media saturated trials like Phil Spector, Enron, and Casey Anthony. During those moments, my profession gets a little attention, but also gets a pretty healthy dose of distortion. Either based on gaps in understanding or based on the need to raise the entertainment value, the media-curated image of what a trial consultant does rarely comes close to the practical reality. And looking at the advance-publicity for a new CBS series, we might be due for another round of attention and distortion. “Bull” is a new series starring Michael Weatherly (formerly of NCIS) based on daytime talk-show personality Dr. Phil McGraw’s early career as a trial consultant with Courtroom Sciences, Inc.

In the series trailer, the character, Dr. Jason Bull, is introduced, complete with smirk and evil-laugh, as “an expert on human psychology,” and “the best trial consultant in the business.” The complete 4:50 trailer leaves us with two broad conclusions. The first is that it appears to be one of the biggest spoiler-previews in history, revealing not only the verdict at the end of the big case, but also several moments that seem designed to be the surprising plot twists along the way. The second is that this series appears to be as steeped in misrepresentation as most other media portrayals of trial consultants, or perhaps more so. I have written previously (here, here, and here) on correcting the myths, but this trailer presents a few fresh ones. In this post, I’ll break down the trailer in order to call out and correct some of the larger misrepresentations of what trial consultants do.   

Image: Jury Consulting is Fancy High-Technology Work

Based on the preview, the producers seemed to have inherited the leftover set technology from Runaway Jury. The viewer sees a futuristic control room, with a wall of touch-screen monitors featuring pictures and data on each of the jurors, as well as mock trials with biometric hand scanners and individual cameras for every mock juror. The message is that trial consulting is a new and advanced technology for knowing and controlling jurors.

Reality: Most of Jury Consulting is Basic Social Science

The reality of what trial consultants do is much more prosaic. Instead of a panoptic read on every nuance of the juror or the mock juror, it comes down to a more practical application of the normal tools of qualitative research: surveying on the right attitudes, listening carefully to the discussions, and sharing useful but not perfect results.

Image: With Enough Information, Juries Are Completely Predictable

In the trailer, Dr. Bull notes that “The jury starts with a preconceived idea of the truth, we don’t guess at that.” The doctor’s apparent sidekick adds, “Dr. Bull profiles every juror: their behavioral patterns, what they click on, likes, avoidances, then we create a mirror jury and run mock trials. It all gets plugged into a matrix that is scary in its predictive efficiency. Dr. Bull knows how they’ll vote before they do.” 

Reality: Even With Research, The Jury Is Never Fully Predictable

Anyone who tells you that they know how the jury will vote is selling you something…in this case, a television pilot. As near as I can tell, the writers are unique in using the term “mirror jury.” Consultants are more likely to rely on a “mock” jury, or more accurately several mock juries, to provide ideas and a range of possible outcomes, and a “shadow” jury to point to possible reactions you may not have expected. Both are heuristic tools: You’ll never have an exact match to your actual jury.

Image: Consultants Can Read Nonverbal Communication With Extreme Accuracy

At one point, Dr. Bull confidently informs his young client that, “93 percent of all communication is nonverbal.” To illustrate, the trailer then shows a scene where Dr. Bull seems to be definitively decoding jurors facial expressions, with panelists communicating very clear messages like: “I just don’t like this lawyer,”  “Mysogynistic jerk,” “Someone needs to stick it to the system,” or “I’m so hungover.” 

Reality: No One Can Distill Precise Meaning from Nonverbals

Of course, we can all understand nonverbals, and we do it all day. But the idea that one can definitively translate nonverbals into clear verbal messages, as illustrated in the trailer, just isn’t borne out by the research. In fact, here is a handy way to distinguish those who have pretended to study human communication from those who actually have: The former will use that 93 percent statistic, and the latter won’t. The reason is, of course, that no study has ever found that, and the source that some people offer for that statistic, Albert Mehrabian, has disavowed that interpretation of his data many times.

Image: Trial Consultants Are in Charge

In the trailer, the lead counsel seems to work for Dr. Bull, and not vice versa. The doctor notes that he “hates lawyers” twice during the trailer and, because he also “hates surprises,” he also steals and bugs the attorney’s (fake) Rolex watch. Dr. Bull also seems to call the shots, at one point telling junior counsel, “Clyde’s not doing direct, you are.” In one of several confrontational scenes, the lead attorney tells Dr. Bull, “You can’t control a trial like this,” and Dr. Bull responds, “You can’t,” implying, “but I can.” And then the client tells counsel, “Do what he says.”

Reality: Trial Consultants Serve the Attorney

Okay, that last part sounds like a trial consultant fantasy. But the less-exciting reality is that trial consultants work for the attorney, and to the extent that consultants have any power at all, it is the power to add to that attorney’s team and to make that attorney more effective. Dr. Bull’s “Rule number 1” that “the client is the enemy,” might make for good television, but it makes for a pretty bad, not to mention unethical, working relationship.

Image: Trial Consultants Are Super-Attractive

Based on the character of Dr. Jason Bull, the character description suggests that trial consultants possess a “physicality, feral intelligence and bruising candor” that make them “magnetic” to others.

Reality: Okay, that One Is True

 

Near the end of the trailer, the on-screen text reads, “No Rules…No Apologies…All Bull.” Yes, it may actually be “all bull,” but perhaps not in the sense that the writers intended. Of course it is nothing new for professions to be dramatized in the media: Doctors, forensic investigators, teachers, newsmen, police officers and politicians might also chafe at the way they are represented on television. One difference, however, might be that these misrepresentations of trial consultants are accompanied by a very low understanding of what consultants actually do, and are offered at a time when the civil jury is uniquely under threat. To fight that cynicism, it falls on the consultants and those lawyers who rely on them to correct the record. Hopefully, CBS stations will see a useful tie-in opportunity and invite actual trial consultants onto the news to share what is and isn’t real in the representation.

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Other Posts on Perceptions on Trial Consultants: 

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Image credit: Jaaju, Flickr Creative Commons

September 28, 2015

Repair the Corporate Image

By Dr. Ken Broda-Bahm: 

VW Logo Image

I’ve had a fond and favorable impression of Volkswagen. Partly that’s due to my childhood memories from the 70’s of driving around with my large family in an old VW bus, and partly that is the result of the company’s conscious marketing as a slightly off-beat, countercultural, and environmentally aware company. When the company reintroduced the bug in the late 90’s, they did so with the promise, “If you sold your soul in the 80’s, here’s your chance to buy it back.” Over the years, the larger Volkswagen group’s reputation for reliability, performance, and economy has led to it passing Toyota to become the world’s largest automaker. But what a difference a week can make. Volkswagen is currently embroiled in what is likely to be one of the biggest frauds in automotive or, for that matter, corporate history. The company has admitted to having employed a kind of defeat software in its “clean diesel” engines that switches on emissions control technology in response to patterns indicating that an emissions test is in progress, and then switching off that technology once the test is over. In other words, the cars are programmed to cheat the test.

Affecting 11 million vehicles worldwide, including half a million in the U.S., the scandal is certain to carry some big ripples: potentially billions in fines, criminal sanctions, and civil suits. Already, there is notice of 30 class action lawsuits representing all 50 states plus Canada. It is a tremendous blow, some say potentially fatal blow, to the company’s place in the market because it strikes at the heart of Volkswagen’s image. The Washington Post, for example, quotes Christa Morgan, a customer from Portland, Oregon who bought a 2011 Jetta SportWagen, based in part on its low emissions. “I don’t want this car,” she said. “It makes me feel sick that I’ve been driving this car for about four-and-a-half years and belching all these toxic fumes into the atmosphere.” Volkswagen has a public relations crisis on its hands, and that will soon be joined by a litigation crisis. A recovery might be hard to imagine at this point, but other companies have bounced back from dramatic losses of face and credibility. If that image recovery does happen, it will happen because Volkswagen is able to develop an effective PR message that is in sync with its litigation message. That is where the debacle carries a lesson for all corporate defendants: There is a pattern to how they, and other similarly situated companies, should respond. 

Volkswagen’s Problem: A Worst Case Scenario

What is particularly striking about Volkswagen’s current trouble is that it contains a high measure of all three of the factors that resonate with the public and magnify the perceived scandal. That “dark triad” of factors is that it is harmful, intentional, and deceptive. 

Harmful

The “defeat software” was designed to circumvent emissions rules that have been in place for decades, and that have improved air quality over the years. The manipulation allowed the release of mononitrogen oxides, or NOx, at up to 40 times the legal limit. NOx causes asthma and respiratory illness. According to an analysis by The Guardian, the estimated worldwide total of Volkswagen’s extra emissions, one million tons per year, is equal to the total amount produced by the United Kingdom’s power stations, vehicles, industry and agriculture. 

Intentional

The story emerging so far sets Volkswagen apart from most other automotive and corporate scandals. Instead of being caused by an inattention to safety or to quality, the problem was created on purpose. While the “who” and “how” still aren’t completely clear, it seems that those coding the software built in the emissions defeat as a feature not a bug. That means that at some point in the corporate hierarchy, someone made the choice to trade-off environmental quality in favor of better performance. 

Deceptive

Another compelling feature to the story is how it was discovered. In 2012, a $50,000 grant enabled West Virginia University to road test the vehicles, and they found emissions levels up to 35 times what should have been expected based on the emissions control technology. That was followed by several years of communication before the company finally admitted they misled regulators and consumers. The defeat software was itself a lie to regulators, and when the data became available, the company seems to have continued to hide the ball for several years. 

The Corporate Image Repair Solution

It will be a long road to recover its image, and the outcome is still questionable at this point. But if Volkswagen does make it, part of its message, both in and out of court, will need to include a comprehensive apology that shows a consistency in words and deeds. Unfortunately, corporations facing a public crisis don’t always do that. Recent research (Mena et al., 2015) shows that large companies tend to first apologize, but then “forget” the irresponsible action by removing any trace of the act. By simple avoidance, the company can end up not learning any lessons from the scandal. 

We have written previously about the difference between a partial or compromised apology and a complete apology. In a complete apology, four elements need to be both evident and credible: remorse (“We feel badly about this”), responsibility (“We hold ourselves accountable for it”), repair (“We will fix the damage we caused”), and reform (“We will do our best to see that it never happens again”). Let’s take a look at how these ‘Four R’s’ apply to Volkswagen. 

Remorse

As he resigned, former CEO Martin Winterkorn said he is “deeply sorry that we have broken the trust of our customers and the public.” He also added that he is “shocked by the events of the past few days,” and “stunned that misconduct on such a scale was possible in the Volkswagen Group.” Similar communications from the company are likely to continue, but what needs to be made clear is that the company sincerely appreciates how its customers, shareholders, and the regulators might feel blindsided and betrayed, and that as a result, the company is genuinely remorseful. 

Responsibility

Martin Winterkorn also attempted to hold himself accountable for the debacle. “As CEO I accept responsibility for the irregularities that have been found in diesel engines and have, therefore, requested the Supervisory Board to agree on terminating my function as CEO of the Volkswagen Group.” The solution in this case, however, is not likely to be one sacrifice in leadership. A recent article, CNN Money lays out a good list of next steps, and the first among them is to come clean and communicate clearly. Given that the data was made public a year and a half ago, Volkswagen may have missed a chance to beat EPA and the journalists to the punch by taking responsibility earlier. Now, their best opportunity is to be as transparent and direct as possible in investigating who was actually responsible. 

Repair

Part of the repair has got to be to make the customers whole. That is going to be a tall order, however, because they can’t expect to be able to simply recall the cars, take out the emissions-cheating code and then send them back. Without the software feature, the cars will not perform as advertised, and will not have the same resale value. It is difficult to see how they will propose to make customers whole without buying the cars back. In addition, the large-scale buy-back will also have to be very well run. As Peter Bible, the chief risk officer at consulting firm EisnerAmper, is quoted in the CNN Money piece, “They have to make [it] the easiest recall known to man. It has to be very consumer-centric.” In addition to customers, stockholders who have seen a substantial drop in value need to be looked after as well. In total, the company has set aside $7.2 billion to repair the problem. 

Reform

For either the market or jurors to be reassured, Volkswagen will have to demonstrate that a deception like this cannot happen again. As the CNN Money piece notes, that means fixing the culture by identifying whatever policies and incentives led to the defeat software in the first place, as well as whatever led to it being either undiscovered or allowed within the company for so long. The company will need to dissociate the old personnel, policies, and priorities from the new ones. If Volkswagen’s response is decisive and emphatic, then the crisis is an opportunity to show how much the company values honesty. 

Taken together, the four parts of an apology form a story, and that story tracks with a familiar theme: redemption. Both in public communications and in a courtroom, Volkswagen will need to convincingly show that the company and the new leadership have seen the light. It cannot be just words either, and will need convincing large-scale actions in order to be credible. At this point, a full apology may or may not work. But one thing is for sure: Without it, Volkswagen will not be able to repair its image. 

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Other Posts on Corporate Image: 

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S. Mena, J. Rintamaki, P. Fleming, A. Spicer. On the Forgetting of Corporate IrresponsibilityAcademy of Management Review, 2015; DOI: 10.5465/amr.2014.0208

 

Photo Credit: spatz_2011, Flickr Creative Common

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December 15, 2014

Don’t Confuse Certainty with Accuracy when It Comes to Witness Testimony

By Dr. Ken Broda-Bahm: 

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Chants of “Hands Up, Don’t Shoot” and “I Can’t Breathe,” continue to be heard at protests around the country. Motivated by the Ferguson, Missouri police shooting of Michael Brown, as well as the choke-hold death of Eric Garner in Staten Island, New York, these protests testify to a rising distrust of police killings, particularly when they involve African-American men. To some extent, these demonstrations are reactions to disproportionate impacts when it comes to police use of force, a reaction that is independent of the facts of any one or two given cases. But to another extent, these reactions reflect a lack of credibility in the judicial system’s response. In the Ferguson case, for example, the nonindictment of officer Darren Miller was based on the grand jury’s choice, some say a choice inappropriately encouraged by the prosecutor, to believe some witnesses and not others. 

The idea that eye witnesses can be inconsistent is not new, but the dozens of Ferguson witnesses provide a timely example of that. To listen to the witnesses, Michael Brown was charging or surrendering. And he was either close or quite distant at the time. Intuitively, we would like to think that there is nothing better than a first-hand visual account, but we know that those accounts can be fallible. University of Nebraska-Lincoln psychologist Brian Bornstein refers to it as the “Eyewitness Paradox:” Everyone knows that perception and memory can fail, yet at the same time, eyewitness testimony is still enormously influential, with some 75 to 80 percent of overturned wrongful conviction cases being based on eyewitness testimony that was later found to be wrong. A look into that paradox highlights some important implications for litigators, as well as others interested not only in psychology but in their beliefs about psychology. While the research most often focuses on eyewitnesses in the criminal trial, the lessons from eyewitness psychology and folk psychology apply to witness evaluations in any situation where witnesses are remembering things that may or may not be accurate. This post will take a look at a few of the more important implications covered in a recent article and lecture. 

The psychology of eyewitness memory is the subject of a recent Op-Ed in The New York Times, written by Christopher Chabris and Daniel Simons, psychology professors at Union College and the University of Illinois respectively. In addition, an hour-long and detailed (but still accessible) academic lecture from Brian Bornstein is currently available on Cornell University’s webcasting site. Drawing from both the article and the lecture, I see three important implications that apply to practical litigators: 

Appreciate the Fallibility of Memory

The point made repeatedly, and empirically, in both of these sources is that an eyewitness’s memory is not a neutral record. Honest and careful witnesses make mistakes. Those who work in the area of false convictions (e.g., The Innocence Project) can attest that these mistakes aren’t rare outliers, but are actually disturbingly common. From a wide body of research, we know these failures occur because perception isn’t perfect, and because what we see and hear are not simply stored and then recalled, they are transformed through the acts of perception, retention, and recall. Studies continue to show that memory is far less complete, neutral, and thorough than we would expect it to be. But the “eyewitness paradox” is that even where we see the eyewitness’s potential flaws, we continue to act as though those flaws aren’t there. 

Account for Beliefs About Memory

The reason we tend to act in ways that give memory more credence than it deserves comes down to our beliefs about memory. Professor Bornstein addresses many of these beliefs in discussing the field of “meta-memory” research, a field focusing on our knowledge and beliefs regarding how our memory and the memory of others works. Bottom line: People are not particularly accurate in understanding the way their own memory and other peoples’ memory works. And these often-wrong beliefs about memory matter, particularly when we’re evaluating witness testimony. For example, Bornstein points to something called the “confidence heuristic,” meaning the rule of thumb we apply suggesting that those who are more confident are more likely to be accurate than those who aren’t confident. That rule of thumb is the most influential factor in determining witness credibility, endorsed by the jury instructions and the jurors’ intuitions alike. The problem is that the link between confidence and accuracy is mostly an illusion. As Bornstein explains, “Laypeople, which includes prospective jurors, have some erroneous beliefs about eyewitness testimony. They expect some things, like confidence, to matter when they don’t.” Chabris and Simons’ New York Times piece also references research (Roediger & DeSoto, 2014) looking at how well people did at recalling words from a list that they had studied. Their results show that subjects express high confidence not only in true memories, but in false ones as well. And with the false memories, higher confidence is actually correlated with lower accuracy. 

And Try to Educate

Having an expert on hand to testify about some of these memory issues would certainly be useful. The problem is that it often isn’t allowed. And, of course, there’s no guarantee that jurors wouldn’t trust their own intuitions more than the expert’s testimony. But it is still a good idea to try to educate jurors and potential jurors to the potential threats to accurate memory. By default, jurors are likely to focus on one main threat to accuracy: conscious dishonesty. But the equation that “If it’s honest, then it must be accurate,” doesn’t bear out. As Chabris and Simons explain, “It is just as misguided to conclude that someone who misremembers must be lying, as it is to defend a false memory in the face of contradictory evidence.” But a jury pool won’t know that, and will instead “know” a number of things that aren’t true about eyewitness testimony at the start of voir dire. Bornstein, for example, includes a table comparing a number of statements and indicating the percentage of memory experts who agree versus the percentage of jurors who agree. Looking at the “cross-race effect”  — the finding that eyewitnesses are more accurate when identifying members of their own race rather than another race — 90 percent of experts agree, but only 47 percent of jurors agree that this effect is real. But it actually is real. Drawing from these and other resources, attorneys should be able to make a very compelling case for the need for expert testimony geared toward helping jurors do their duties and reasonably and accurately evaluate eyewitness testimony. If that doesn’t work, litigators can also use oral voir dire to prompt discussions that at least induce jurors to be a bit more informed and critical. 

Ultimately, the treatment and evaluation of eyewitness testimony is another area where the law is challenged in keeping up with the psychology. The common sense of the panel simply isn’t enough. 

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Other Posts on Witness Credibility: 

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Photo Credit: 123rf.com, used under license. 

November 20, 2014

Account for Fenno’s Paradox: We Don’t Judge Groups Like We Judge Individuals

By Dr. Ken Broda-Bahm: 

3D men - man standing out in row

Here’s a riddle for you: Going into the midterm elections, approval ratings for Congress hovered at just around 14 percent, yet the win rate for Congressional incumbents was 96.6 percent. How can we reconcile those numbers? Americans have an incredibly low opinion of the institution, yet overwhelmingly return the same people to do the job. The complicated answer probably lies in a combination of embarrassingly low turnout, as well as higher name recognition and a whopping fundraising advantage for incumbents. But part of the reason also has to do with the uniqueness of aggregate evaluation: We judge differently when looking at groups versus individuals. That means that we can hate Congress and still love our congressman. 

That tendency is so well-established in American political science that it has earned its own name: “Fenno’s Paradox,” after University of Rochester political scientist Richard Fenno Jr.  It refers to the belief, frequently observed especially in midterm elections, that people will typically disapprove of the U.S. Congress even while they are more likely to typically support their own congressman. The more general principle applies in other settings as well. When  it comes to public schools, for example, parents are likely to dislike the public school system while, at the same time, liking their own school. This tendency for general evaluations to differ from particular ones has some implications for litigation. Jurors, for example, can hate “corporations” while still loving a particular company or its executives. Alternately, they can distrust “plaintiffs” and “lawsuits” while, at the same time, believing that the one suit they’re seeing is the exception to the rule. This post will share some ideas on the litigation implications of Fenno’s Paradox. 

Loving the Congressperson but Hating the Congress

The home base for Fenno’s Paradox, the U.S. Congress, provides the most obvious case study. If the same people are simultaneously hating Congress and returning their own congressperson, then there are reasons to suspect that they are voting for reasons other than support. For example, they’re pulling a lever based on party alone, or they feel the “other guy” is worse. Or, they might feel that their own district’s representative is one of the few trying, against the odds, to “Get Washington Working Again…” Psychologically, there are reasons to suspect that this kind of “exceptionalism” is at work and it isn’t necessarily an illogical bias. As we gain more information about our local representative, we are less likely to rely on broad abstractions about Congress and more likely to rely on actual information about the officeholder. Greater attention, of course, won’t always work to the representative’s advantage. One paper (Bawn et al., 2012), for example, showed that when districts and media markets overlap so as to create a more highly informed voter pool, that tends to result in a lower reelection rate for those officeholders who are farther from the political center. 

Hating the “Corporation” but Loving the Company or the Executive

Here at Persuasion Strategies, we have researched anti-corporate attitudes for more than a decade, and have demonstrated a consistent long-term trend: Majorities are prone to lean against the corporation in a hypothetical case pitting a corporation against an individual, and more than eight in ten will say that a typical corporation will be dishonest in order to make higher profits. There is a pretty durable bias against the “corporation” as a general abstraction. But when asking about specific companies, the views are more favorable than you might think. Based on some polling, for example, a number of big-name corporations have very high favorability ratings, with names like Walmart, McDonalds, General Motors, United Airlines, Target, and Johnson & Johnson all having majority approval rates over 70 percent. In addition, we have consistently found that a single good boots-on-the-ground company witness can dramatically improve the image of a corporate defendant in a trial context. 

Improving the Evaluation

Guarding against a possible negative evaluation often means talking your target audience (judge, jury, or arbitrator) down from any generalized presumptions they may have about you and toward a more specific and informed view. That improved perception can be partly a factor of just learning the case over time, but here are a few considerations or possibly new ways of thinking about it. 

1. Climb Down the Ladder of Abstraction

We have written before that moving down the “Ladder of Abstraction” can aid in comprehension. If, for example, you think of a spectrum with an abstract notion like “breach of fiduciary duty” on one end, and a concrete act like “your lawyer secretly negotiating with the other side” on the other end, then you can always promote better understanding by moving your language and your explanations toward the concrete end. When it comes to evaluating parties, moving down the ladder doesn’t just improve comprehension, but also leads to a more specific and informed evaluation. 

2. Humanize

When presidential candidate Mitt Romney famously shared that “Corporations are people, my friend” he seemed to have been not so much invoking the controversial legal principle that a corporation has personal rights and interests, as stating the obvious that corporations are made up of people. That is something we tend to forget when we are broadly evaluating the company as a simple two-dimensional character in a trial story. Meeting the people involved, particularly the ones who took action and made the choices at issue, the assessment changes. Humanizing, of course, can be positive or negative…depending on the human. But a well-chosen and well-prepared company witness can substantially improve the “corporate” image. 

3. Assess as Specifically as You Can

We all vainly want to believe that the more we are known, the more we are appreciated (or perhaps that’s just true of bloggers). Ultimately, though, we won’t know if a more specific, human, and concrete view will help or hurt. That is a reason to test perceptions. Find out what the jury-eligible population thinks, not only about the general issues, but about the specific parties as well if they’re known. In a community attitude survey, don’t just ask about “plaintiffs.” Instead, give a few sentences on the circumstances of the plaintiff in the specific case and ask about that. In a company-defense mock trial, provide enough of the defendant’s back story that jurors are able to react concretely. In politics, Fenno’s Paradox might cause us to shake our heads, but in litigation, the potential to react more favorably to the individual can be an important tool. 

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Other Posts on Making Things Concrete: 

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Bawn, K., Cohen, M., Karol, D., Masket, S., Noel, H., & Zaller, J. (2012). A theory of political parties: Groups, policy demands and nominations in American politics. Perspectives on Politics10(03), 571-597.

July 7, 2014

Vet Your Trial Consultant

By Dr. Ken Broda-Bahm: 

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Your doctor has an M.D., a license, and potentially board certifications as well. Your lawyer has a J.D., a license, and quite possibly other honors based on experience. The legal videographer recording your deposition likely will be certified for that work. Heck, even your plumber, your home siding installer, and your chimney sweep are likely to carry a credential speaking to their knowledge, training, and experience. But if you need a trial consultant for help with strategy, research, or jury selection, then you are on your own. For consultants in this field, there is no credential, no license, and no common or predictable educational track that has led them to their practice. Those who advise lawyers on the psychological and communication aspects of legal persuasion gain their skills in a variety of ways, but the professional organizations of that field have so far demurred on the question of creating a credential, a certification, or any other message to the larger community of litigators that would speak to the background, experience, reputation, or ethical commitments of trial consultants.

I say that not to criticize my field. There are reasons — some of them good reasons — why the question of professional credentials has been an especially vexing one for this relatively young field. For one thing, the backgrounds that bring people to consulting are dizzying in their variety. Many have experience in psychology, and many like myself have a broad focus on legal communication and persuasion. But for many others, their path runs through sociology, or drama, or law, or market research or business. This diversity is more often a strength than a weakness, and these myriad views all can contribute in helping litigators step outside a narrow legal framework and see their cases from a broader and more human point of view. But for consumers of litigation consulting services, the lack of a clear benchmark can be disconcerting. Surely, just as with doctors, lawyers, videographers, plumbers, and chimney sweeps, consumers of trial consultants look to other factors: their own experience and the referrals of those they trust. But some form of credential would be a good reassurance or starting point. Absent that or any other Angie’s List for trial consultants, clients are left with one solution: Vet your trial consultant. This post will take a look at the consequences of a lack of credentialing, and share a number of questions that all clients should ask their prospective consultant. 

Litigation Consulting: A Field Without a Calling Card

Clients have asked me more than once, “Isn’t it true that anyone can call themselves a trial consultant?” I have to say that is true. But I also add that it’s safe to say that the great majority of consultants actively working are well-experienced and committed professionals. Still, this open ability to hang out a shingle — even if it only theoretically admits the unqualified — carries a meaning at a professional level. The organizations representing the field of trial-consulting are not able to speak meaningfully to litigators about the relative experience, quality, and excellence of trial consultants. Litigators, of course, rely on their own experience and word-of-mouth, but that is only an informal and partial substitute for an institutional role.

The absence has not gone unnoticed, with a recent piece in Slate magazine calling the field “unregulated and certification-devoid.” The Houston Chronicle also notes, “There are no specific degree programs, training requirements, certifications or licenses for jury consultants.” Martin Kaplan and Ana Martin (2013) also repeat the truism that “anyone can proclaim himself or herself a trial consultant” (p. 21). The services covered by trial consultants are vast, and as a recent paper argues, “there is not a single degree that would adequately prepare one for trial consultation in regards to all of these skills” (Laxton, 2014). Similar statements noting these gaps appear in virtually all published treatments on the profession. For example Amy Posey and Lawrence Wrightsman (2005) write, “The trial-consulting profession has no certification or training requirements; virtually anyone can practice as a trial consultant…. As a consequence,” the authors note, “the profession is left to struggle somewhat with its identity” (p. 229). 

That struggle has been a useful lever for some critics of the profession. In one frequently referenced article, Franklin Strier (2001) notes that “those who use the services of a trial consultant have no assurance that the practitioners they retain have even minimal desirable education, training, or ethical standards.” (see also Strier & Shestowsky, 1999 and Strier, 2011). There is one main association for trial consultants — the American Society of Trial Consultants. But simple membership in that organization has not been a good answer to those critics. While ASTC members can point to their membership as a sign of professional engagement, it is understood that anyone can become a member of ASTC simply by paying a registration fee. Membership is not intended as a statement on either engagement or professional competence. Also, as Kressel and Kressel noted in their book Stack and Sway, “In any event, trial consultants have no obligation today to join their professional organization, and many prominent consultants do not” (p. 221). That problem has increased since the Kressels wrote that in 2002. The ASTC still serves as a vital resource for connecting members and promoting education and standards. But ASTC membership does not serve as a reliable sign to litigators on the quality or experience of the consultant they hire.

This makes it all the more important for litigators and their clients to do their own research and ask their own questions. Rather than taking it on face that those holding themselves out as trial consultants have the perspective and the experience that will be most suited to your needs, you need to conduct your own investigation, starting with some simple questions for those you’re looking to hire. 

Questions to Ask Any Prospective Trial Consultant

Here is my starter list of questions for vetting your consultant. 

What Is Your Educational Background? 

What degrees do you have and in what fields are they? It’s true that degrees aren’t destiny, and they’re in no way the end of the road for education. But they still provide a framework and a foundation that the consultant will bring to the analysis. 

What Is Your Area of Specialization?

Some consultants specialize in particular areas of litigation and others don’t. Some work mostly for one side — like plaintiffs — while others work equally for all sides. Some work mostly small cases, others only larger cases, and still others work on a wide mix of case types.  

How Big Is Your Team? 

Some consultants offer full service — several other consultants, research assistants, in-house graphics, etc. — while others are smaller operations or solos. But the larger company still might understaff you, and the smaller company or solo might have a broad network to draw on. So it helps to ask who your specific team will be.  

How Do You Conduct Research? 

There is a tendency to think of a “mock trial,” as a fungible item — much the same from one shop to the next. But that isn’t true: Consultants approach their research in a broad variety of ways. So ask, how do you get recruits? How do you guard against idiosyncratic or unreliable results? How do you translate your findings into recommendations?  

Who Does the Work?

Some consulting groups feature very qualified and charismatic lead consultants who close the deal and deliver the work product. But in between that courtship and closure stage, the actual work of analysis and recommendations is done by far less qualified and experienced junior consultants. 

What Do I Get After the Research? 

By default, some consulting groups provide a data-heavy analysis of results, some go straight to the recommendations, and others will give you a mixture of the two. Some focus mostly on jury selection, others on opening statement, and still others on your overarching trial story, including witness testimony. 

What Is Your Commitment to the Profession?

Do the consultants participate in the profession’s organization, the ASTC? Many consultants are members and many are not. Many know and follow that organization’s professional standards and practice guidelines, but many do not. Many feel strongly enough in the benefits of their practice that they take on pro bono work, but many others don’t.  

What Is Your Professional Voice?

Beyond the confidential consulting done for clients, is there an identifiable public voice from your prospective consultants? Do they write books, articles, or blogs? Do they have a presence in the mass media? Do they frequently present — at a level beyond marketing their services — at conferences and CLEs?  

There are undoubtedly more questions, but these provide a good start to getting to know your potential consultants and their professional qualifications. I believe, along with many others, that it is likely that someday that quest will be aided as well by some kind of credential. And of course, when that day comes, it still will be necessary to do your own vetting. After all, no one presumes that doctors, lawyers, or chimney sweeps are all equally qualified just by virture of their credential. But still, it is good to know that as a starting point, all have earned the statement of a professional organization that they have the experience and qualifications to provide the services you need. 

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Other Posts on the Trial Consulting Field: 

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Kaplan, Martin F. & Martin, Ana M. (2006). Understanding World Jury Systems Through Social Psychological Research. Psychology Press, p. 21.

Kressel, Neil J., & Kressel, Dorit F. (2002). Stack and Sway: The New Science of Jury Consulting. Westview. p. 221. 

Laxton, Kelsey (2014). A Plea for Education in Trial Consultation: Implications for Practice and Ethics. Pre-publication manuscript, Sam Houston State University. Contact the author (KLaxton@shsu.edu) for a copy. 

Posey, Amy J. & Wrightsman, Lawrence S. (2005). Trial Consulting. Oxford University Press, p. 229.

Scott, Laura (Undated). How to Beccome a Jury Profiler. Houston Choricle, Work Section: URL: http://work.chron.com/become-jury-profiler-20736.html

Strier, F. (2001). Why trial consultants should be licensed. Journal of Forensic Psychology Practice, 1, 67-74. doi: 10.1300/J158v01n04_04

Strier, F. (2011). Reform proposals. In R. L. Wiener & B. H. Bornstein’s (Eds.), Handbook of Trial Consulting (pp. 371-392). New York: Springer. doi: 10.1007/978-1-4419-7569-0_17

Strier, F., & Shestowsky, D. (1999). Profiling the profilers: A study of the trial consulting profession, its impact on trial justice and what, if anything, to do about it. Wisconsin Law Review, 1999, 441-499. 

Warner, Joel (2012, Feb. 22). Runaway Juror: Can I Use Science to Get out of Jury Duty? URL: http://www.slate.com/articles/health_and_science/science/2012/02/the_science_of_getting_out_of_jury_duty_.html

Photo Credit: dicophilo, Flickr Creative Commons

May 1, 2014

Dissociate (to Separate Bad Image from Good Image in Litigation)

By Dr. Ken Broda-Bahm: 

Cutting a piece of Rope

At the start of their game last Sunday, members of the L.A. Clippers ceremonially left their warmup jackets in a heap in center court, and warmed up with their shirts turned inside-out in order to conceal the name and logo of the team. This act came in response to recorded comments by team owner Donald Sterling telling his girlfriend “not to bring them [‘black people’] to my games.” The response by the players was a move of dissociation: a way to say “We are not that,” and to clarify, in no uncertain terms, that the owner’s racism does not represent the team. This need to dissociate – to separate one meaning from another – is common in all communication situations, including those that involve the potential for litigation. Recently, for example, General Motors made the bold move of offering a full and complete apology for its inaction in addressing a long-term problem with its ignition switches, but in subsequent congressional testimony, CEO Mary Barra was careful to draw a distinction between the “Old General Motors” prebankruptcy, and the “New General Motors” that today stands before congress, court, and consumers. 

Dissocation plays a role in lower profile cases across the country as well. A range of litigation-relevant situations create a need to communicate that “we are not this.” Like most good persuasive strategies, the notion has its roots in rhetoric, the ancient and modern study of the best available means of influence. But the idea is more than just ivory tower philosophy.  Dissociation also translates into some important practical strategies worth considering by trial attorneys in a number of situations. This post takes a look at the underpinning, as well as the concrete strategies of dissociation. 

Dissociation: The Rhetoric of Separating the Bad from the Good

First off, a wonk alert: As a field, rhetoric is sometimes viewed as a little insular and academic — on the opposite end of the spectrum from practical advice. Even its name can sound like an insult. But as a student broadly focused on communications, I have found my time spent in rhetoric to be among the most useful and most applicable as I provide advice on cases bound for trial. Yes, the scholarly articles and books tend to speak to their own audience in their own language, not always keeping an eye on concrete implications. But the benefits of understanding persuasion from a rhetorical perspective can be enormous. 

Dissociation provides a perfect example of a rhetorical theory with broad practical applications for working persuaders. An explanation and theory of rhetorical dissociation was originally expressed in a very influential book called The New Rhetoric (1969) by Chaim Perelman and Lucie Olbrechts-Tyteca. “Pairs such as means-end, appearance-reality, name-thing, letter-spirit, opinion-truth, and so on, establish two dissociated modes,” they explain, “in which the first is devalued and judged inferior to the second.” 

For practical persuaders, that invokes a common need, and the strategic question for litigators is how to accomplish that separation. Let’s say that, like the Clippers, a party has a need to separate itself from one of its parts. Or, like General Motors, you need to separate a present image from past actions. Or, at a more basic level, let’s say that any other litigator needs to separate the core of the case from its periphery, or the reality of the case from it’s perceptions. Or, more specifically, a medical malpractice plaintiff would need to separate the standard of care from the negligence. 

Viewed in this way, dissociation is not just a strategy, but a basic tool of persuasion. Perelman and Olbrechts-Tyteca go so far as to say that there are really only two ways we persuade: by associating and by dissociating. You either create a connection between your target and something desirable, or you break a connection between your target and something undesirable. 

Looking at the methods of drawing a connection — association or identification — another modern rhetorical scholar, Kenneth Burke, argued that there are three main forms. Applying and repurposing these methods, we end up with three basic tools litigators can use in making a critical dissociation. 

A Material Difference

Persuaders wanting to dissociate the bad from the good can point to a material difference between in facts or circumstances. General Motors, for example, can argue (and is arguing) that its 2009 reorganization created a materially New GM, and as far as liability goes at least, the New GM is not responsible for the actions of the Old GM. Finding a material difference — one based in different facts, different circumstances, or different legal status — could also work for other persuaders looking to dissociate. A construction defendant looking to distance itself from some faulty work, for example, could argue that the work was done by an independent contractor, not by employees or subcontractors. This focus on a material difference is probably what comes to mind first for lawyers, but it isn’t the only way or the most effective way to persuasively draw a distinction. For example, if GE’s emphasis on the New GE succeeds in denying plaintiffs the ability to sue, then it may be more successful in the legal courts than in the court of public opinion. 

A Formal Difference

Formal dissociation is more along the lines of what the players for the Clippers did. By removing the symbols that fans might be connecting with Donald Sterling’s offensive comment, they showed their own distinction in formal terms. “The team is not the owner,” the message was. Formal identification is what takes place whenever a witness dresses down a little bit to be closer to a jury panel, or whenever a politician wears the hat of whatever organization he is speaking to. On the flip side, a dissociation is accomplished by rejecting those symbols, or at least setting them aside for a moment as the Clippers players did. GM, for its part, might also be looking to emphasize the new “look” and new leadership in and out of the courtroom. In trial presentations as well, those formal differences can be helpful to your message. In an environmental legacy case, for example, a defendant might use a different graphic style — different colors, fonts, design, etc. — when talking about the former companies that caused the problems and the present company in court. Even those formal differences can help the jurors fight the tendency to lump all the companies together. 

A Transcendental Difference

A final way to draw a distinction carries the evocative name “transcendental,” but what it really means is something that draws a distinction at the level of idea or principle. Donald Sterling’s apparent embrace of racism is at odds with the team’s rejection of it and with the composition of the team itself. That difference in principle transcends the fact that the team and owner are still engaged in a common business enterprise. Dissociating based on that difference in principle is what GM CEO Mary Barra tried to do in her congressional testimony as well: “Today, if there’s a safety issue, we take action,” she  said, “(If) we know there is a defect on our vehicles, we do not look at the cost associated with it. We look at the speed in which we can fix the issue.” That commitment, presumably new, is offered in order to dissociate New GE from Old GE, and more subtly, to serve as a reason for not condemning the former for the sins of the latter. 

The upshot of all of this is that when faced with the common need to separate what is viewed as good from what is likely to be viewed as bad, you have three tools for doing so: material dissociation, formal dissociation, and transcendental dissociation. Taking a broad view and potentially using all of the tools in the tool box should help. 

It is also worth noting that strategies of association and dissociation are often used together. For example, the chant being embraced by Clipper’s fans at games is now “We are one!” with the “we” presumably meaning everyone but the owner.  

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Other Posts on Rhetorical Theory: 

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Photo Credit: 123rf.com, used under license

March 27, 2014

Do Not Let Silence (or Compromise) Deafen Your Defense

By Dr. Kevin Boully: 

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“Terrible things happened.” On your client’s watch. Do you know what you want to say in response? 

For the last few weeks, including just yesterday, GM has been front-page with ongoing public communication driven by its February 25th recall of part failures linked to 12 deaths. President Alan Batey apologized for the carmaker's ignition switch issues and CEO Mary Barra has spoken on video a mix of contrition, responsibility, and public relations lingo that accomplished some of the goals of a public apology. 

GM’s admission of responsibility is unequivocal – “something went wrong with our process in this instance and terrible things happened” – prompting the assumption that GM is staking out a settlement strategy rather than considering a defense of lawsuits that may be irreparably harmed by the company’s highly public apology. But is GM’s strategy so obviously intended to manage perceptions that it will fail?  Is GM’s compromised communication going to compromise its defense?

  

We’ve said silence in the face of public scrutiny on a company can sink public perceptions and create bias in the courtroom. Can a compromised message serve too few by mastering none? In this post we consider some recent research on the benefits of not apologizing for a transgression and reiterate the case for litigation communication that avoids silence and compromise by knowing your purpose. 

What Do You Really Want to Say? 

Maybe it feels better not to say what your audience wants to hear. A recent study (Okimoto, Wenzel, Hedrick, 2013) on the effects of apologizing shows that, in some instances, refusing to apologize after having done wrong can have greater psychological benefits than apologizing, including greater self-esteem, increased feelings of power and control, and increased feelings of value integrity. We are empowered because we choose not to say we’re sorry for what we’ve done. Those feelings of empowerment create real psychological tension that affects communication: Does it feel better to apologize or to stand firm? Or somewhere in between?

Jurors and judges continue to take a critical eye to litigants who stubbornly resist taking responsibility and admitting mistakes for what jurors and judges see as obviously the litigant’s fault, or worse, attempt a fake or fatal apology that favors the opposition. And jurors in particular want to see, hear, and feel a genuine response that must include corrective action. So is GM’s balancing act  a function of serving too many psychological and practical masters or does GM know exactly what it's doing? 

Know Why and Say What

GM does not appear to be admitting to anything in public communication that it would not be forced to admit in a courtroom. The purpose is not to avoid liability if the evidence of liability is unavoidable.  

(1) Know exactly what you’re trying to achieve. In addition to the four key elements we have presented before, an effective response to public scrutiny while in litigation should always be steered by an honest and unqualified assessment of what you want your communication to achieve. If you want to avoid additional risk of liability, understand that silence may not be the communication you need. If you want to moderate public anger and encourage compromise, understand that admitting fault in favor of managing public perceptions may be highly effective. 

(2) Avoid compromised communication. Actions are the proof of intent. Even if your purpose is to achieve compromise, that purpose is rarely well-served by mere words that clearly serve more than one master. While balance and sincerity are both key goals of an effective apology, the public is increasingly savvy and sophisticated when it comes to consuming and interpreting strategic communication. They see the duality in a compromised message, and they want to feel they are a respected audience that companies and their attorneys are not simply trying to manipulate. Avoid communication that tries to accomplish too much and fails to show the action behind the intent you’re communicating. 

We told you we fixed the problem, and we have the actions to prove it. In the last few months we have implemented an entirely new quality control system and, in the test stages, we were able identify a 25 percent increase in quality alerts. We have a system and it is working. 

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Other Posts on Apology: 

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Photo Credit: Patrik Theander, Flickr Creative Commons

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