By Dr. Ken Broda Bahm:
Around the war room conference table, all of the eyebrows went up at once as I shared a recommendation for the opening statement. I can’t share the idea without revealing the case, but suffice it to say that it was unorthodox. Several around the table shared that they had never done an opening that way before, and I countered that they had probably never tried a case with exactly these challenges before.
As much as litigators like to believe that they are at the cutting edge of persuasion, I’ve often found that they can be quite conservative in their approach, sticking to the same basic messages and approaches, and just altering the facts they feed into the formula in order to fit each case. We will say that we value creative ideas, but in our actions, we tend to prefer the “known” even when the known is known to have some problems. It turns out that this ambivalent attitude toward creative ideas is shared by the public at large. This post takes a look at a new research showing why we secretly fear creativity, and offers several recommendations for making sure that your trial preparation benefits from both the creative and the conventional.
The Research: Creativity is Desired in Principle, but Rejected in Practice
A recent study (Mueller, Melwani, & Goncalo, 2011) published in Psychological Science, and available as full text at Cornell University’s Digital Commons, has documented the disconnect between what we say and believe about creativity, and what we unconsciously think and do in response to creative ideas. The researchers induced uncertainty in participants and, using the Implicit Association Test typically used to assess racism, they found that when study participants are in a position of uncertainty, they are less likely to recognize creative ideas and more likely to think negatively about creative ideas.
In other words, doubt makes us more conservative and conventional, and less tolerant of creativity. That may sound like an adoptive trait; after all, if you’re feeling particularly unsafe and insecure, then the wild and crazy idea might seem particularly suspect. But when those conditions of uncertainty stem from a failure of the conventional approaches, the wild and crazy might be exactly what we need – or at least need to consider.
The trial is a perfect example. The challenges of litigation create the perfect conditions of doubt — over decision maker perception, over opponent strategy, and over outcome — and a bias against creativity is the result. But those very same challenges suggest that the search for strategies and approaches should be broad-minded and open. The conditions that weaken our faith in creativity, are the same conditions that create a need for creativity.
Recommendations: Your Case Strategy Needs to be Open to Creative Approaches
Creativity needs to be a member of your trial team. That is not to say that an idea becomes good just by virtue of being creative, but without considering the creative ideas, your team is too prone to prefer the familiar approaches that may not adapt to the specific strategic needs of your current case. Remember that “familiar” doesn’t mean “safe,” and “conventional” doesn’t mean “effective.”
Your trial team can promote creativity by cultivating an atmosphere where ideas are welcomed, tested, accepted or rejected, but never punished. Psyblog has a number of practical ideas for facilitating creativity on teams. Being creative doesn’t mean that trial teams should dispense with caution or convention. Indeed, the stakes are generally high enough that any message — creative or bland — should be carefully vetted before it is tried out in front of a jury, a judge, an arbitrator, or a mediator. One thing we’ve learned in trial preparation is this:
The Time to be Most Creative is the Mock Trial
There are three specific ways that you can use mock trial or focus group research to enhance the creativity of the messages you test:
1. Experiment With Diverse Voices in the Mock Trial. Your pretrial research is not the time to hunker down with the core trial team and trot out a predefined strategy. Instead, it is a time to hear from everyone: your clients, consultants, colleagues, second and third chairs, associates and paralegals — everyone. One of the best features of a mock trial is that it is an outstanding conversation starter both before and after the research. Make sure you ask everyone to weigh in on the outlines before the project, and to stick around for an hour or two immediately after the mock trial is over to discuss the challenges and opportunities while they are still fresh in everyone’s mind.
2. Experiment With Different Roles in the Mock Trial. In nearly all teams there is one person at the helm, and generally that person is planning to deliver opening statement and to handle the key witnesses. In the mock trial, however, that person may want to take a backseat, or to play the other side. The reason we most often offer for encouraging lead counsel to mock the other side’s argument is, that there is no better way to get inside the enemy’s head than to force yourself into their shoes. But an equally good reason for keeping lead counsel out of the lead role in the mock trial is that it puts someone else in that position, creating some space for fresh ideas and approaches.
3. Experiment With Different Message Options in the Mock Trial. Frequently, the issue that is bedeviling a trial team can be boiled down to one question. For example, “Should we use that witness?” “Should we introduce that document?” or “Should we accept some responsibility?” Your pretrial research will be more useful to you if you’re able to focus it on the key question. One way of doing that is to recruit a greater number of mock juries (four or six), exposing half to one scenario and half to the other. It isn’t the same as a controlled experiment, but it does permit you to gain some experience and some feedback on the key question that you’re facing.
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Mueller JS, Melwani S, & Goncalo JA (2011). The Bias Against Creativity: Why People Desire but Reject Creative Ideas. Psychological sciencePMID: 22127366
Photo Credit: Zouny, Flickr Creative Commons, Text added