We have written many times about what separates good trial teams from world-class trial teams. One article collectively written by many people inside and outside of A2L stands out to me as seminal. It can be found here:
If I could have all trial lawyers read only one of our articles, it would be this one. It is one of more than 600 on our site, but it succinctly reflects our leadership's best thinking, and it best summarizes what most of the other 599+ articles say.
This simple list of 10 criteria, especially when used as a trial team self-assessment tool, is a thing of magic.
In arriving at this deceptively simple list, we captured hundreds of years of trial experience. At first, we identified 50 trial team traits that set the great ones apart from the ordinary (you can see these in this article). When we reduced these 50 traits to 10 key criteria, I think we revealed the secret ingredients of a successful trial team. And in the two years since that was published, I have not seen any reason to revise the criteria. In fact, I’ve seen this list turned assessment tool perform consistently: Trial teams with low scores lose cases; trial teams with high scores win cases.
Nowhere on this list do we explicitly use the term groupthink, but our thoughts on the subject are certainly implied through our selection of these 10 traits.
First, what is groupthink? Wikipedia says:
“Groupthink is a psychological phenomenon that occurs within a group of people in which the desire for harmony or conformity in the group results in an irrational or dysfunctional decision-making outcome. Group members try to minimize conflict and reach a consensus decision without critical evaluation of alternative viewpoints by actively suppressing dissenting viewpoints, and by isolating themselves from outside influences.”
During trial preparation, members of a trial team can easily put not wanting to be wrong or different ahead of challenging a group decision. We have written about trial teams becoming dysfunctional under severe stress several times before in articles like:
Groupthink is a little different than the nearly complete group breakdowns described in these articles, however. It's a little more subtle and not quite as nightmarish. Still, groupthink can derail a case -- and it often does.
Although groupthink can raise its head at any time, we often see it emerge when a trial team is evaluating an opening PowerPoint deck under development, particularly if there are more than five people doing the evaluating. Members of the team will avoid challenging everything, including the specific slides, the order the story is told in, and what not to say during opening. Instead, they will give the appearance of agreement by staying silent.
This is groupthink and it does not help win cases. It does the opposite. Here are nine ideas for solving these problems in a trial team.
- Get the “buts” out of the room: This is an expression we use at A2L. When you are doing creative work, nothing shuts down the creative mind more than someone who jumps in to say why something won't work. These statements usually start with the word “but.” See, Dealing With That ‘Bad Apple’ on Your Trial Team.
- Establish rules for your trial team meetings: Here are two we often use: silence is acceptance, and no spectators allowed.
- Ask your litigation graphics team for variations to stimulate thinking. Looking at one litigation graphic may generate some discussion, but looking at two variations guarantees it. Ask for this from your provider. See, 10 Reasons The Litigation Graphics You DO NOT Use Are Important.
- Conduct a mock trial AND refer to the results. We conduct many mock trials. We also see many clients who don't quite want to believe what the jurors said. Often this relates to how little a mock jury understood about a case. When it comes to listening to mock jurors, I like to say, squint with your ears. See, 10 Things Every Mock Jury Ever Has Said.
- Appoint an antagonist. I've seen organizations use this technique to kill groupthink. It's as simple as asking someone on the team to be a designated skeptic throughout the meeting. What's interesting is that when one person does it, everyone feels they have permission to question a consensus.
- Use litigation consultants. Good litigation consultants challenge a team's thinking in a respectful way. They even challenge the work being produced by their own litigation graphic artists.
- Agree in advance that there will be many voices but one vote. I don't think many organizations operate well when they use group decisionmaking too frequently. A trial team is no exception.
- Bring in an outsider. There may be someone in the firm who can act as an internal outsider during a meeting and offer an outside perspective.
- Read and re-read this article and ask: Are we, as a trial team, following these best practices exhibited by the world’s best trial teams? Have the courage to score your team on a 0-100 basis. https://www.a2lc.com/blog/10-criteria-that-define-great-trial-teams-trial-preparation-assessment-tool