“L” is for…Lions! The Peril of Blind Spots in Litigation

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As a die-hard Seahawk fan, I have little trouble finding ways to ridicule other teams, but boy did the Detroit Lions make it easy for me the other day. Spot it? When you’re already one of the worst teams in the NFL, advertising it with a giant “L” for your logo doesn’t make a lot of sense.  It begs the question, who thought this was a good idea and why didn’t anyone stop them? There were probably a couple of factors at play, and those same factors could be contributing to poor decisions and outcomes like this one in your own litigation practice.

First, trial teams are often set up with “lead” attorneys, typically a more senior partner, perhaps “the” man or woman of the firm who is brought in to try the case. While their experience is invaluable to the team it can also create a chilling effect – clearly a different context, but chilling nonetheless as younger, less experienced, or simply shy or reserved team members decide they should keep quiet. Perhaps they’re afraid of backlash, or being “wrong,” or being seen as too aggressive or disrespectful. Or, call it groupthink, the downside of smaller, cohesive groups that value consensus and harmony over critical thought. I can picture the Detroit Lion marketing meeting where someone trotted out the logo and somebody else was thinking “Hmmm, am I the only one who sees it? Surely someone will say something?” But the meeting continued, and no one blinked an eye, so this person kept quiet.

It’s easy to spot this during trial when a junior member of the team is tasked with writing the daily report about how trial went. I’ve been in court and then read the account and wondered what trial they were watching. A short version might go something like this (guess which side the person was writing for): “The plaintiff presented a sloppy, incoherent opening. Jurors looked bored and no one took notes. After 45 minutes he finally sat down, and jurors breathed a sigh of relief. On the other hand, Mr. Jones kept jurors’ attention with a polished, persuasive two-hour opening. He showed a command of the facts, and eloquently attacked every plaintiff argument. Jurors took copious notes, laughed at his jokes, and periodically nodded along. Even the judge looked pleased.”

Every member of a litigation team should be on the look out for groupthink; every member (especially the lead) should be asking themselves, “Are people afraid to tell me that something is a bad idea or I should consider doing X instead of Y? Am I open to an honest critique – I might say I am, but how do I respond when actually given the feedback? Do I have people on this team who think differently than I do? Who view the world differently?” Basically – will people tell you when you have a BIG “L” on your cap?

Those last couple of questions lead to a second important point – how diverse is your team? I am not talking about diversity for diversity’s sake, and I am especially not talking about adding a woman or a minority to the team for appearances only at trial. Doing so could be counter to your efforts since jurors can spot (and will critique) what you’re doing from a mile away. Diversity of life experiences, opinions, world views is critical to the team’s success. Yes, much of that comes from gender, race, age – but also upbringing (including where one has lived most of their life), group affiliations, income, schooling, career, etc.

Scott Page wrote an interesting book a couple of years ago where he coined the phrase “The diversity bonus.”[1] The bonus is achieved when one works with different kinds of “thinkers”; he argues that “cognitive diversity”  – differences in how people “perceive, encode, analyze, and organize the same information and experiences – are linked to better outcomes.” The “bonus” is better problem solving, increased innovation, and more accurate predictions. This is not just Page’s opinion, he has research (and there’s just common sense) to back it up.

Litigation necessarily requires a cognitively diverse team for the simple reason that you will be presenting your case to a cognitively diverse team – your jury.  Even a judge, mediator, or arbitrators present a diverse audience. Let’s just take millennials as an example. My colleague Tom O’Toole analyzed 17 juries he had recently picked, and he found that 31% of those jurors were millennials and Gen Z. Not understanding (or caring) about how that age group has been shaped by social media, the voluminous increase, and ever more segregated, media platforms, the death of facts/truth, etc. can and will have monumental effects on your ability to reach them.

While you all might start by looking at the same set of “facts,” how each team member analyzes those facts will be different. The language, themes, and ultimate framework that will be deemed most credible and persuasive can best come about by allowing a robust debate about those “facts.” Yes, we believe that getting consultants like us involved can greatly assist this process. While we, too, are shaped by our own experiences, we’ve spent years watching and analyzing people from all walks of life. We’ve conducted experiments, run dozens of national surveys, run hundreds of mock trials and focus groups, picked hundreds of juries, and led dozens of shadow juries…all around the country. It’s our job to bring cognitive diversity to a team. If we’re not there, look for team members who will bring that critical diversity.

Finally, a note about the size of the group. Bigger is not always better and can lead to more groupthink or chilling effects since in a larger group, hierarchies naturally evolve. There’s a reason the old adage “Too many cooks in the kitchen spoils the stew” has stuck around. Too many cooks not only could chill discussion, but listening to too many voices can drown out the best ideas. Often in a large group, it’s not the best ideas that get accepted, it’s the loudest. There must have been someone in that Detroit Lion marketing meeting who very loudly proclaimed, “I’ve got it! An ‘L’ for Lions! Get it! We’ll put it really big on that cap so everyone knows it’s for the LIONS!”

I’ve seen really good openings become – well, not so good – because too many voices were listened to; every suggestion was taken which turned it into an untenable length, every word analyzed and critiqued until the language became nearly meaningless, the structure/arc was gone, and, probably the worst, it was no longer in the voice of the attorney who actually had to give it. Yes, get advice, but then make sure it’s still your own voice. You cannot be persuasive and powerful if you’re struggling with how to sound those things while reading someone else’s words.

Finally, to the Detroit Lions. I’m sorry there was no one in the room to stop you all from putting a big “L” on your caps. But I’m not sorry that in 2016, which was the last time you had a chance to advance in the playoffs, the Seattle Seahawks beat you. And, because my husband and son are Rams fans (yes, football season is rough in our house), I’m not sorry you traded Matthew Stafford to the Rams. They say that makes it the Rams’ year. I, however, would not count my Seahawks out.

[1] Scott Page. “The Diversity Bonus: How Great Teams Pay Off in the Knowledge Economy.” Princeton University Press, 2017.

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