As this year's presidential election campaigns move into their final stretch, each side is settling in to its own story. Even as the polls shift from week to week, mostly due to a minority of late undecideds reacting to current events, the positions remain remarkably dug in for Republicans and Democrats. One reason for that, and it affects both sides, is that the stories that provide a foundation for these political leanings tend to be driven more by beliefs than by facts. A recent piece in The Atlantic, for example, takes a look at Trump supporters noting what it calls a "rift between belief and truth" among pro-Trump voters and commentators alike. The piece takes aim at Wall Street Journal commentator Peggy Noonan for blurring the lines between perception and reality when analyzing what Trump supporters believe and how the GOP establishment should be responding. For example, she notes “What Trump supporters believe, what they perceive as they watch him, is that he is on America’s side,” contrasting that with previous Presidents -- both Obama and Bush -- who, she suggests, were not on America's side. She also describes Trump's base as being disadvantaged in the current economy and unprotected by the government. However, as the piece in The Atlantic notes, the facts do not bear that out. Pointing to FiverThirtyEight's Nate Silver, for example, it turns out that Trump supporters actually earn more than supporters of Bernie Sanders or Hillary Clinton, and pointing to Gallup's Jonathan Rothwell, it turns out despite claims from Trump supporters of “suffering because of globalization, …suffering because of immigration and a diversifying country, …I can’t find any evidence of that.”
Of course perceptions matter. But when it comes to forming opinions, the line is crossed though when perceptions become a personal truth. Peggy Noonan may be crossing that line when she reports the Trump supporters' beliefs, not just as beliefs, but as blueprints for what the Republican establishment should be adapting as its theme and policy direction. Arguably, those who are convinced of a victimhood that the facts don't support are lost in their own narrative, judging reality based on whether it fits the story, instead of judging the story based on whether it fits reality. This risk of putting the story first and the facts second can occur in any field which is driven by communication. And that means every field, including litigation. In this post, I'll comment on a few ways those who are crafting and following narratives in court risk becoming lost in their own stories as well.
Who in Litigation Is at Risk of Getting Lost in Their Own Stories?
At its root, litigation is a test of competing stories. The side that wins is the side whose story is more complete, more compelling – and this one ought to be most important – more supported by the facts. This central role for story, however, doesn’t make it the perfect means of communication. Stories can obscure as much as they illuminate, and our common tendency to judge reality through a narrative frame can leave us vulnerable. In trial, that vulnerability can affect several actors.
The Juror Who Relies on Feelings Rather than Facts
The court is intended to be the arena of reason and evidence, but the court is also populated by humans who bring in their more general attitudes and feelings. Generally, that is not so much a problem to be solved as it is a fact of human communication that requires adaptation. But in some cases, jurors can end up feeling to such an extent, that they’re actively putting the facts aside. We see that in some mock trial deliberations with the sympathetic juror who cannot find fault with the defendant, but who still wants to see some aid delivered to the plaintiff in the form of damages. Spotting the jurors who prioritize their feelings over the facts can be important in voir dire.
The Advocates Who Focus on Their Own Best Case Rather than the Other Side's
Advocates are trained to find the best in their own case and the worst in their adversary’s. That skill is important, but if unchecked, it can lead to a distorted understanding of a case’s real strengths and weaknesses. If the story is, “Everything they say is wrong,” then you’re probably missing a few important chapters. Effective advocates don’t just paint their adversary at their worst, but strive to consider what their adversary’s best case is, and why, even if some parts of that story are true, the adversary still loses.
The Consultants Who See What They Expect to See in Research Results
The point of pretrial research, focus groups and mock trials, is to assess the case and to develop better ways of presenting it. Expectations, however, can be strong. Even before we test it, we think we know from experience what the main strengths and weaknesses are likely to be. When a mock juror gives a different result, it is tempting to treat that individual as an outlier or an aberration. The most important skill a consultant brings, however, is the ability to listen with an open mind and without an agenda. Sometimes the feedback will be idiosyncratic and untrustworthy. But sometimes, the dominant reaction will point to something unexpected, and those moments provide some of the best reasons for testing your case beforehand.
If there is one quality that is key to becoming a sensitive and adaptive communicator, it is the quality of understanding that your perceptions are not reality. Stories are great -- or, in any case, inevitable -- but be careful that you don't get lost in your own.