By Dr. Ken Broda Bahm:
Litigators expect to be fighting with the other side. After all, that’s what trial is about. But when it comes to making decisions within our own teams, we should avoid criticism, all pull as one, and cooperatively come together around a common strategy, right? Wrong! Instead, we should be fighting it out, criticizing the choices we don’t agree with, and debating over the best course of action. An innovative study on decision making and team function shows that working groups actually tend to be more effective not when they’re brainstorming and avoiding judgment and criticism, but when they’re engaged in in an atmosphere of intense debate and even criticism.
If at some point in your education, you’ve been taught the techniques of traditional brainstorming, then this advice will sound counter-intuitive. The foundation of the cooperative thinking technique is that, initially at least, we should welcome all ideas and refrain from criticism or debate. The belief is that by avoiding criticism, we decrease conflict and fear of evaluation and as a result we allow more and better ideas to flourish. That sounds logical, but the problem is that there isn’t much empirical support for the power of brainstorming – it doesn’t work that way in the lab. Instead, settings that welcome internal debate and even criticism appear to do much better. The message of this post is that your trial team is an ideal setting for putting this advice into practice. After taking a look at the research, I make a couple of recommendations for effectively bringing the fight to your team.
Debate and Criticism Improves Idea Generation:
As discussed last month in the excellent blog Why We Reason, this particular study challenges our common assumptions about what makes groups effective. One American and three French psychologists (Nemeth et al., 2004) put together a study to compare the results of groups working under either the traditional brainstorming instruction (you should not criticize anyone else’s ideas) or more novel instructions to debate or criticize (you should debate and even criticize each other’s ideas). The traditional thinking on brainstorming and group cohesion would predict that the second group would be more reticent and careful and would come up with fewer ideas. In the study, however, the opposite turned out to be true: Groups working under the debate condition generated significantly more ideas than did groups working in the brainstorming condition. Lest we think the result is an artifact of our own combative culture, the study was replicated in both the U.S. and France. The researchers conclude that their study calls into question the assumption that criticism is the enemy within a team: “The encouragement to debate and even criticize, not only does not inhibit idea generation, it appears to enhance it even more than traditional brainstorming instructions.”
Encourage Debate Within Your Working Group
The implications of this research might change the way you think about all groups, but the decision making shift may have the greatest consequences within your trial preparation teams.
1. Cultivate a Critical Culture. That doesn’t mean negative, combative, or cruel — but it does mean critical: an environment where everyone feels that it is their job to point out both the benefits and the drawbacks of what is being considered, and to do so directly. In a trial team, there is often a fair amount of deference to the most experienced or “first-chair” lawyer. In practice, that may mean that even as everyone provides input, the lead counsel decides, and if you happen to disagree with that decision, then you hold your piece and say, “well, at least I’m not driving.” Given the high stakes in the strategic discussions leading up to trial, however, the research says that robust argument is better than deference. Ultimately, of course, someone will make the call and that is probably the first chair or the client, but before you get to that point you should ask if the question has gone through the gauntlet of full and fair debate.
2. Build the Debate Into Your Mock Trial Design. When you have a lingering strategic question that hasn’t been resolved through discussion, sometimes mock jurors can provide an answer. For example, lets say there is a hot dispute on whether you should use a key but vulnerable expert witness, whether you should emphasize or deemphasize a particular exhibit, or whether you should ask for or pass on a specific instruction. Members of the trial team can, and in my view should, argue about these points. But an additional method is to turn your mock trial jurors into debate referees or judges by using a divided scenario structure. For example, two juries hear the case with the information at issue included, while two juries hear the case with that information excluded. When everything else about the presentations remain the same, you can often get a better handle on how important (or perhaps unimportant) the difference is by watching the reactions of the groups.
I’ve noted before that when a case makes it all the way to trial, it is often because one side or the other is seriously misunderstanding their chances for success. Misunderstandings like that as well as other strategic miscalculations can thrive in a climate where team members are reluctant to disagree and nervous about challenging the first chair or the client. “The exchange of ideas amongst people is good,” notes the Why We Reason blog, “but an overly agreeable brainstorming session is certainly not.”
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Other Posts on Decisionmaking in Trial Preparation:
- Settle Your Case Without Setting the Dominoes in Motion: Research on the Demonstration Effect
- Be More Realistic Than Your Opponent
- Predict With Care: Adapt to Overconfidence in Case Assessment
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Nemeth, C.,, Personnaz, B.,, Personnaz, M., and, & Goncalo, J. (2004). The liberating role of conflict in group creativity: A study in two countries European Journal of Social Psychology, 34 (4), 365-374 DOI: 10.1002/ejsp.210
Photo Credit: snow0810, Flickr Creative Commons