By Thomas M. O’Toole, Ph.D.
The current NFL scandal surrounding Ray Rice and his wife, and the numerous subsequent incidents with other players (i.e. Greg Hardy, Adrian Peterson, etc.), offers a perfect example of the problem with the “storytelling” advice that pervades the jury consulting industry these days. In many respects, the story for the NFL was strong. It had all the components of apology that scholars recommend for corporate scandals. It indicated that change was imminent. In short, it was a good story and everyone probably (understandably) felt good about themselves when the team developed the story in some conference room somewhere.
The NFL is a lot like many corporate defendants. As Gregg Easterbrook argued in a piece for ESPN, the public has been waiting for an opportunity to criticize the NFL due to its arrogance in recent years, and the NFL had no reserve of goodwill to help it through the situation. Corporate defendants are similarly situated. Large portions of the American public have strong, negative opinions of corporations and their actions. When a corporation is named as a defendant in a lawsuit, there is rarely a reserve of goodwill at trial that softens the critical orientation of jurors. This poses a significant burden on the corporation as we have seen with the NFL.
A good story is rarely enough, particularly for a party under heavy scrutiny. Instead, central fact selection and the presentation take center stage. Any single case has hundreds if not thousands of facts associated with it. Jurors care (and think) about few of these. Research shows they might remember as little as 10% of them by the time they reach deliberations. Central fact selection is about choosing which facts the presentation will make most prominent to the jurors. It is a choice about, if jurors will only remember a few facts at the end of trial, which facts you want them to remember. Fact selection is critical for three reasons: 1) it establishes immediate credibility by proving something to jurors (rather than asking them to take your word for it); 2) a strategically-chosen central fact of the case tells your jurors everything they need to know about the case while organically tapping into psychologically-satisfying principles that will drive the way they make sense of it; 3) it substantiates the central message and what jurors want to believe after-the-fact. In most cases, 3-5 facts can tell jurors everything they need to know about the case.
The situation with Roger Goodell, the NFL, and Ray Rice can teach defendants in litigation a lot about the shortcomings of mere storytelling and the importance of central facts. Let’s look at three key issues in the NFL’s current dilemma.
1. The perception of “hired guns.” Goodell hired Robert Mueller from Wilmer Hale to conduct an independent investigation of the NFL’s handling of the Ray Rice situation. In response to a question from ESPN’s Rachel Nichols, Goodell posed the rhetorical question, “You are questioning the integrity of the director of the FBI?” Judging by this response, Goodell thought Mueller’s credentials (technically the former FBI director) would carry the day. Yet, the public was quick to question the neutrality of Mueller, since his firm, Wilmer Hale, had employed the president of the Baltimore Ravens for about 31 years. Maybe it is a legitimate criticism. Maybe it’s an audience motivated to explain away any action Goodell takes. Who knows? But here we have a situation where the NFL banked on a highly credentialed expert to carry the day and the strategy failed. In short, the public feels this strategy lacks substance and even the most credentialed experts cannot hide a perceived lack of substance.
2. The failure to substantiate the story that was being told. Goodell failed on two levels in his press conferences. First, he failed to offer anything that could substantiate the NFL’s contention that it had not seen the video from inside the elevator. Sure…perhaps it is difficult to identify evidence that proves you did not see something, but Goodell failed to even offer anything that helped the public understand why it might be reasonable (or more important, believable) that the NFL did not or could not view the video. In fact, the latter is sometimes more important than the former. I’ve seen instances in trials where a party had direct evidence of something, but despite the direct evidence, the jurors did not understand why it would make sense that the contention the direct evidence supported would be true, so the jurors dismissed it. In other words, sometimes the direct evidence is not enough and the party has to go further and help jurors understand why something would be true.
The second way in which Goodell failed to substantiate the story relates to the path forward. Goodell insisted the NFL would change and declared that such changes would happen by the Super Bowl. This exactly what everyone would expect the NFL to say, so saying it does not accomplish much. Here, the NFL needs to exceed the public’s expectations if it wants to have any credibility and substantiate this plan by offering something tangible to jurors. In other words, the NFL needed to show something to the public, but instead, it chose ambiguity. The NFL may have thought it was doing this by creating a Super Bowl deadline, but it fell far short.
3. The NFL only reacted when it was forced to do so. No one believes the NFL took the right actions with the Ray Rice situation. Instead, the general opinion is that the NFL only took the appropriate action when it was forced to do so when TMZ released the elevator video to the public. This can have devastating consequences because the more important message that comes from these kinds of selfish, reactionary steps is that the public starts to think the NFL doesn’t really care about the issue and is only trying to save face for the sake of saving dollars. This strikes at the heart of the NFL’s credibility, which has spillover effects. Everything the NFL says or does will be approached with skepticism. And, in trial, the last thing a corporation wants to do is send the message that money is the only thing that will force it to change its ways. That is how extraordinary verdicts are born.
The overall point is that, when you are in the critical spotlight, your audience wants substance, not just story. Jurors have what an old colleague used to describe as “finely-tuned bulls**t detectors.” They need substance right off the bat if the defendant hopes to have the credibility to tell a story that jurors will listen to and might believe.
