Tell Me a Story
How do you stop and reverse a stampede against you? How do minorities change the hearts and minds of majorities? How do trial lawyers bend the arc of justice in their favor?
You change the story. While we all believe in justice and fairness, what is just and what is fair depend on the story we see running through our heads as we listen to the facts unfold. Sometimes more facts completely reverse the movie we thought we were seeing. In other instances, a close-up on a single fact focuses the mind and simplifies the clutter of a complicated story. And in every story, the credibility and believability of the storyteller and the story are critical to how the story is received.
A Bomb of Emotions Can Be Defused
The case was dripping with emotion.
In an open-highway head-on collision, a thin (one-tenth of an inch) spare tire bracket in the rear compartment of an SUV ripped and hurled a heavy-duty full-size spare tire forward into the passenger compartment where a beautiful two-year old-girl was sitting properly strapped in her car seat in the right rear seating area.
A thicker version of that same bracket had torn repeatedly in crash test videos for earlier model year vehicles. No one fixed the problem. Instead, the bracket was thinned to one-tenth of an inch for the model year of the accident to accommodate a sporty spare tire and wheel. In the following model year, the thin bracket was replaced with a thicker and more robust bracket that never broke in frontal crash tests.
Black tire marks on the ceiling and interior of the vehicle and cracks in the plastic car seat tracked the 50-pound spare tire to the little girl, who died of an almost complete decapitation of her head. At the time of the accident, the SUV was being driven by the little girl’s mother, who swerved and lost control of the vehicle when she was cut off by a speeding teenage boy who initiated this head-on collision into an opposing vehicle driven by an emergency room doctor heading to work. Paramedics on the scene knew both the broken and crushed mother and nearly decapitated little girl. One of their fellow paramedics (not on the scene) was the mother’s husband and the little girl’s father.
The case pitted a small, tightly knit community against an outside SUV manufacturer. Counsel for the plaintiffs, a renowned Fellow of the American College of Trial Lawyers, felt the emotional pull of the case and kept raising his punitive damage settlement demand as the case neared trial and the evidence against the manufacturer grew darker and darker. The first panel of jurors included two close friends of the little girl’s mother and father. Indeed, nearly all of the local witnesses knew the little girl and her mother and father or the plaintiffs’ attorneys.
All the other defendants, including the baby seat manufacturer, settled and bailed from the trial. No one expected a defense verdict. The hope was only to persuade the jury to return an award less than the last settlement demand.
But, with a little help from the plaintiffs’ counsel, the SUV manufacturer managed to do better than simply reduce the size of the award. The SUV manufacturer reversed the seemingly inevitable stampede to a punitive damage award by connecting with the jurors and delivering a message “made to stick.”
What did the manufacturer do? The manufacturer changed the story by focusing on a few facts and by chipping away at the credibility and believability of the story and storyteller.
First, the manufacturer embraced the facts—good and bad—and kept its position crisp and simple. The first words of the defense voir dire and opening statement acknowledged and sympathized with the plaintiffs’ tragic loss and severe injuries. No effort was made to minimize the tragedy or the plaintiffs’ suffering. An exemplar 50-pound spare tire was used in the defense opening statement and was loudly slammed to the ground multiple times to emphasize—not minimize—its massive size and weight. The tearing of the bracket in this crash, the failure of even thicker brackets in earlier model crash tests, and the absence of failures in the more robust bracket used in subsequent models were readily admitted. No attempt was made to defend the design, manufacture, or failure of the accident bracket. Instead, the manufacturer focused on (1) the violent forces of the head-on crash and the effect of those forces on the little girl’s unrestrained head and neck, and (2) whether a 50-pound tire could slam into the head of a two-year-old child—nearly decapitating her—and leave only a small bruise, the size of a nickel.
Second, the plaintiffs’ counsel opened voir dire by introducing himself and his team and the manufacturer’s counsel’s team, and noted that the manufacturer’s lead counsel resided in a different state. This attempt at distancing the manufacturer’s lead counsel had an unexpected effect. It opened the door for the manufacturer’s lead counsel to talk about his upbringing in the jurisdiction and his identification with the community in which the case was tried.
Third, the plaintiffs used surprise witnesses who very slightly exaggerated their recollections, which undercut the credibility of these witnesses and effectively undercut the credibility of the plaintiffs’ entire team.
Why did this work? How did these actions reverse the tide that was overwhelmingly in the plaintiffs’ favor?
We Fit Reality into the Stories We Believe
The stories that flash into our brains the moment we see or hear a bit of information form a template into which new information is then incorporated. Once formed, it is hard to shake our story. Thereafter, we selectively receive new information with a bias toward confirming our original story. Psychologists call this “confirmation bias.” Ancient people believed sacrifice improved their crops. They confirmed that story by remembering all of the times when the crops improved after a sacrifice, and they made up explanations for why the crops were bad in other years. This is common.
Social science research has repeatedly found that our minds, even when we are infants, are not blank slates. To survive, our brains have developed an instant “flight or fight” reaction that quickly evaluates incomplete information. When we hear a loud sound, we are startled and react immediately. As we gain more experience and training, our reaction becomes more refined. A sudden loud sound may cause some to drop to the ground, others to run away, and some trained emergency first responders to run toward the sound. Our training of our brain’s instant reaction is often unconscious. The color of a person’s skin, gender, a facial expression, an occupation, or the location where one resides often triggers implicit biases—instant stories—that we react to with little understanding of why.
Even those who think they are not biased are often surprised when they take an Implicit Attitude Test (IAT) and find themselves unconsciously making assumptions based on limited information. Mahzarin R. Banaji & Anthony R. Greenwald, Blindspot: Hidden Biases of Good People (2013). We see an Asian person and assume that person is good at math and science and knows how to use a camera. All we see is a person of Asian descent. But we instantly fill in the picture with a story about the characteristics we associate with the image of persons of Asian descent.
As we explore this concept further, we find that the stories and pictures running through our heads create beliefs that define the world we see. Once defined, we selectively observe events around us and force those events to fit into our story and, in a circular motion, confirm the truth and legitimacy of that story. Michael Shermer, The Believing Brain: From Ghosts and Gods to Politics and Conspiracies—How We Construct Beliefs and Reinforce Them as Truths (2012).
Through Stories, We Categorize
As in the “fight or flight” instant stories, we use stories to categorize, organize, and interpret incomplete information. An animal smells a strange odor and instantly assesses whether it is something to be feared or not. The odor—of a predator or food—triggers an instant reaction to run or be drawn to it, even if it is an artificially created odor to repel or bait the animal. We similarly categorize people and situations by bits of incomplete information—color of skin, age, education, occupation, marital status, accent, weight, clothes, and political party affiliation. Knowing a bit of information instantly puts a story in motion in our mind that completes the pictures and explains the situation to us.
New Facts Present a Critical Juncture for Persuasion
New facts either confirm our original story or create dissonance. Dissonant facts cause us to do one of three things: (1) reject the new fact as unreliable or unimportant, (2) accept the new fact and fit it into our story, or (3) accept the new fact and use it to change our story.
Here is the critical juncture for persuasion. Will the new facts and arguments you present cause the listener to reject your facts and arguments or use your facts and arguments to either reinforce the listener’s story or alter his or her story?
First Step: Can I Trust You? Are You with Us or Against Us?
The first and most important step in persuasion is trust. Can I trust you? Can I accept what you say as true? Can I believe in you? Unless you overcome this first hurdle, the facts and arguments you present are meaningless. No matter how much they may contradict the story in the listener’s head, the listener is not listening and is discounting your facts and arguments because he or she doesn’t believe they have any validity.
Trust is more than just truthfulness. We do not trust someone unless we believe that person is truthful, competent, and sincere. We would not trust the most honest person to perform surgery on us if that person has not demonstrated by credentials, reputation, track record, or in some other manner the skills to ably perform. Similarly, even if someone is truthful and competent, we are not inclined to trust that person and follow his or her lead unless we feel that person has integrity and has our best interests in mind. We need to feel he or she is on our side and jointly seeking the same ultimate goals as we are. We need to feel that the speaker sincerely cares about us before we are inspired to follow his or her lead. With trust, not only are we willing to hear what the speaker has to say; we feel we are part of the speaker’s story and are willing to modify our own story to be a part of that story.
Second Step: Empathy—Can You See and Feel What I See and Feel?
The second step of persuasion is empathy—can you connect to the pictures and feelings in the listener’s head and heart? No matter how truthful or sincere the sounds from our mouths or our actions may be, we cannot persuade if we do not understand how those same sounds and actions are being interpreted by the other. What we may think we are conveying is of no consequence. What is received—no matter how distorted—is the only thing that matters.
A skillful and sincere visiting opposing player suggests a play to the coach of the home team. In the visiting player’s mind, he just wants to help. What is conveyed, however, is not his intention. What is conveyed is the act, which will be interpreted by the home team through its own template of stories. The visiting player is the opposition. Not one of us. The visiting player wants to win for his team. Not for us. The visiting player has a vested interested in misleading us. Not helping us. The visiting player does not care about us and cannot be trusted to be acting in our best interests. Whether true or not, the stories dictate how the act is received.
Sometimes an unexpected act and how it is presented can change the story in another’s head and completely transform the other’s perspective. In 2008, Sara Tucholsky hit a three-run home run out of the park (the first of her career) and hurt her knee rounding first base. The umpire ruled her teammates could not help her around the bases. In a remarkable display of sportsmanship, the opposing team’s player on first base, Mallory Holtman, asked the umpire if she could help Sara around the bases. The umpire saw nothing in the rules to prevent it. So Mallory and her teammate Liz Wallace carried their opponent Sara around the bases and had Sara touch every base, including home plate. In that inspiring moment, everybody in the stadium—regardless of which team you were previously rooting for—felt a transformation of the story in their heads and hearts. All were part of the same team cheering and tearing up for Mallory and Liz. The act transcended the game and created a new story that included everyone. Good stories do that. They change our perspective by redefining the boundaries between us and by changing the context of acts and events before us.
Good Stories Transport Us and Show Us a World We Never Saw Before
Like movies and novels, good stories transport us from where we are to far-away places and distant thoughts. We are exposed to new perspectives through the eyes of the characters. Stories help us empathize and see beyond our biases. The key to an effective story is how it defines the group with which we identify.
Martin Luther King created a movement that stretched far beyond the black community by creating inclusive images of America and its people that left no one out. He repeatedly used words like “we” and infused his speeches with phrases from the U.S. Constitution, the Declaration of Independence, and the Bible—conceptual instruments encompassing more than one subset of America.
Nelson Mandela unified an apartheid South Africa by governing with a vision that included all South Africans—white and black. Despite being jailed for years by the white apartheid government, Mandela shunned visions of black revenge and instead became the nation’s leading cheerleader for a mostly white national rugby team that brought blacks and whites together in support of their country’s team against the world.
Changing hearts and minds requires trust, empathy, and a story that transforms our views about each other and the context of the events before us.
Keywords: litigation, trial practice, confirmation bias, Implicit Attitude Test, incomplete information