Most litigators cringe at the idea of recognizing strengths in the other side’s case (or weaknesses in their own). It doesn’t seem right. Instead, it seems like a recipe for disaster, an acknowledgement that the other side might have a strong case. However, research suggests that recognizing the strengths of the other side’s arguments (or the weaknesses in your own) actually increases your persuasiveness.
I went looking for this research after a recent experience in Seattle, Washington. The plaintiff attorney in this case chose to remain silent on a couple key weaknesses in his case. He didn’t even acknowledge them in his opening statement. At the time, I questioned whether this was a wise decision, though I was happy to see it happen since I was working for the defendant. At the end of the trial, the jurors found in favor of the defense and afterward, I had the opportunity to interview a few of the jurors. Unprompted, one of the jurors mentioned this issue, arguing that the plaintiff attorney’s refusal to acknowledge key weaknesses in his case undermined his credibility.
It might be tempting to rely on this anecdote alone, but I wanted to dig into some of the research on this phenomenon to see if this was a one-off or something more notable. Most of the research on this topic comes out of studies in political science and advertising. For example, a 2008 study of consumer decision-making published in the Journal of Consumer Psychology found consumers feel they are less informed and therefore less convinced of their opinions when presented with only one-sided arguments compared to two-sided arguments. One-sided arguments are arguments where the presenter does not recognize strengths in the other sides’ argument (or weaknesses in their own). Two-sided arguments do just the opposite and acknowledge the strengths and limitations of both sides. The authors found that two-sided persuasion enhances the credibility of persuasive efforts.
Another study from 2004 cited in the book Consumer Behavior found that consumers find a message more trustworthy when the messenger acknowledges a shortcoming in the message. A 2007 study published in Psychology and Marketing found that two-sided persuasion is more effective at changing the minds of audience members when they are initially opposed to the message you are trying to communicate, which is particularly notable for corporate defendants who often face an uphill battle before opening statements even begin.
Perhaps most important, a 2020 study found that two-sided persuasion is effective because it better positions supporters of one side to effectively persuade others. This is fairly obvious to some degree: in order to effectively argue a message to others, the arguer needs to acknowledge and understand potential issues with that message or the counterarguments against it. This is particularly important for jurors because the most important debate that takes place at trial is the one in the deliberation room not the one between the attorneys. Deliberations rarely begin with all jurors in agreement, even when they eventually reach unanimous verdicts. This means jurors who are persuaded by your arguments need to be able to effectively repeat and argue them in deliberations. Their ability to acknowledge strengths in the other side’s case (or weaknesses in your own) enhances their credibility among the group and allows them to exert greater control over the discussion by acknowledging problems but then navigating the group around those problems. It helps position them as leaders in deliberations.
A final argument for the value of recognizing strengths in the other sides’ arguments and/or weaknesses in your own relates to juror expectations and is probably more applicable to defense strategies than plaintiff strategies. One of the problems with being a defendant in a lawsuit, particularly a corporate defendant, is jurors expect you to come in and fight tooth and nail against everything the plaintiff says. It is why traditional alternative damages strategies are so ineffective. Jurors expect corporate defendants to try to pay as little as possible in a lawsuit, so it is not impactful to them when the corporate defendant tries to do just that with an alternative damages theory. The key to battling these kinds of expectations is to violate them. Research shows, when our expectations and predictions are violated, it immediately captures our attention and causes us to reassess. Along these lines, the last thing any juror expects from a corporate defendant in a lawsuit is an acknowledgement of any strengths in the plaintiff’s arguments or weaknesses in its own. Consequently, similar to what the previously-cited research studies found, such an acknowledgement may enhance a corporate defendant’s credibility in the courtroom.
