In the final episode of the first season of Ted Lasso, the Apple TV comedy starring Jason Sudeikis as an American football coach turned English Premier soccer coach, Ted tells the team that in order to beat Man City, they have to try something new, and that meant pulling out every trick play the players had ever come up with, in order to create “chaos and confusion.” Ted summarized that they were going to hit Man City with the “Chaos Hammer!”
Besides providing an opportunity to reference my favorite show of all time, the “chaos hammer” made me think about what is likely an inadvertent “chaos hammer” that is too often thrown into a trial, most often by defendants when they provide a laundry list of defenses, legal (i.e., estoppel, statute of limitations, failure to mitigate, inequitable conduct, etc.) or otherwise (i.e., contradictory accounts, should have done X not Y, didn’t read the warning, never saw the report, the tests weren’t accurate, etc.) against the plaintiff’s claims. While we recognize there are legitimate and necessary reasons for raising some of the legal defenses, those in combination with all the others amounts to what hundreds of mock and real jurors have told us over the years: “It felt like they were throwing out every excuse they could think of to see what would stick” or “I felt like they were deliberately trying to confuse us.” You didn’t realize it, but jurors view the chaos hammer you threw into your case just like Ted called it – a “trick play.” The problem is your jury knows they’re being tricked (or duped) and they don’t like it. In a recent mock trial, one mock juror declared in the middle of deliberations, “the fact that they’re even making this argument shows how desperate they are to shift blame where ever they can.”
These types of “chaos hammers” are ineffective for several reasons, the biggest being that it sends the message to your jury that you don’t have a strong defense; after all, if you did, you would not have to try “everything.” What your jury hears is “If you don’t buy this excuse, what do you think about this one?” “Don’t like that either? How about this one?” And on and on. While we often use this phrase in a slightly different context, it applies here, too: If everything is important, nothing is important. If jurors view an argument as desperate, it can have a spillover effect that erodes the credibility of your overall defense in the case.
The second biggest problem is that having too many defenses can lead to inconsistencies or internal contradictions that you might not even be aware you are making. The testing was flawed vs. pay close attention to this test result. The plaintiff keeps changing their story, so we don’t know what to believe vs. the plaintiff told the truth when he said this. They didn’t read the warnings vs. there was no reason to include a warning about X. We don’t owe the plaintiff a dime vs. if we owe anything, it’s a fraction of what they’re asking.
Whether your jury realizes it or not, when jurors listen to both sides’ case presentations (the “stories” of what happened), they are applying what has been coined narrative rationality. Narrative rationality is based on the premise that human beings are story tellers, and we make sense of the world (including both making and receiving arguments) based on how “good” a story is. “Good” is determined by two very important characteristics: coherence and fidelity. Coherence is undermined when you throw the “chaos hammer” at your jury. For a story to have coherence it must “hang together.” In other words, it must be internally consistent both in how the various elements hang together and how the characters in your story act. So, if you have said a main character is an unreliable witness, but also assert that something they said is, in fact, reliable, you’ve created “chaos” (an inconsistency) in your story that jurors have to resolve.
Narrative fidelity is how well your story “rings true” with how jurors view the world and/or their own life experiences. So, if one of your defenses is that the person should have read every warning label, but the jurors’ personal experiences tell them leaves them believing that “no one reads every label,” you have created chaos (and inconsistency) that, once again, jurors have to resolve. This is dangerous because it is an invitation to jurors to inject their knowledge and beliefs into the case to make sense of the inconsistencies.
Here are three tips for avoiding the chaos hammer:
1. Write down a sentence that encapsulates your core case theme or message. What is it that jurors must fundamentally believe in order to find for you? Everything else you do should be focused on that goal, on advancing that message. This is a difficult task. You may find yourself thinking that it is impossible to fit all of it into a single sentence, but that is precisely the point. If you are feeling that way, it is a good sign that you are trying to do too much and, in the process, making it impossible to deliver what the jurors really need.
2. Outline the framework for your case – all the arguments you think you want to make (legal or otherwise), then EDIT, EDIT, EDIT. In the old days before computers and word processing programs made it so easy, when writing a research paper, I’d take 3×5 cards and each would have a different argument or point to be made with the supporting evidence/citation. Then I’d put them together, try different orders, throw out those that were problematic (i.e., convoluted, contradictory, just “messy”), and ultimately lay them out as the finished paper (story) that just needed typing up (yes, I’m that old). Doing something like this exercise allows you to see not only how many different arguments or points you’re trying to make and assess if that’s simply too many, but it allows you to compare and contrast them, always asking if they make sense together…do they have “fidelity”?
3. Ask for feedback. You’re probably too close to the case, too vested in all the arguments and positions that you’ve poured yourself into to truly know what should be left on the cutting room floor. Yes, that feedback can come in the form of a focus group or mock trial, but if you don’t have the resources for that, at least run it by a non-lawyer friend – but a friend who will tell you the truth.