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The Litigation Consulting Report

5 Signs of a Dysfunctional Trial Team (and What to Do About It)

Posted by Ken Lopez on Thu, Mar 14, 2013 @ 03:44 PM

5 dysfunctions of a trial team fix dysfunctional litigationby Ken Lopez
Founder & CEO
A2L Consulting

Anxiety does strange things to people, especially when they are working together in teams. When they become anxious, a rare few people become more focused and Zen-like. For most people and teams, however high anxiety causes one (or more) of five predictable dysfunctional behaviors to be manifested, of course subconsciously. The anxious person is usually not aware that he or she is behaving in this way.

There’s a close connection between trial preparation and anxiety. All too often, much is left to the eleventh hour, and the more that is left, the more anxiety there is. Many litigators procrastinate until a few weeks in advance to prepare for trial. It's understandable why this happens. Usually this is just that litigator's style, or the attorney is accustomed to getting excellent results with minimal preparation, or he or she is trying to please their client by not spending money until the client can see they are headed for trial.

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No matter the reason, procrastinating does not serve a client well.  We've written about this topic before (see also Simplicity Takes Time and Two-Track Litigation Strategies). No large case should be prepped for trial in the two weeks leading up to it, and one of the reasons this is true is due to the anxiety it causes.

High anxiety causes most people to behave irrationally and to follow primitive signals from their “old” brain, the amygdala. These five dysfunctional behavior patterns can be spotted in a trial team if you know what you are looking for.

1)    Fighting or passive-aggressive behavior. People openly pick arguments with fellow team members, often over seemingly trivial matters, or they exhibit passive-aggressive behavior by seeming to agree but sabotaging the other person’s plan.

2)    Exits. People abruptly leave the trial team. Often the only thing these people are able to say is that it “just became too much for them,” or that they had “had enough.”

3)    Dependence/Deification. People look to the leader to make the anxiety go way through specific behaviors that invite the leader to assume control. These include not participating actively in discussions, appearing confused, or saying to the leader things like “we just need you to decide.”

4)    Control. Someone may deal with anxiety by assuming dictatorial control of a team or engaging in a mass firing. When someone behaves like Al Haig after the Reagan assassination attempt, that person is in a dysfunctional pattern.

5)    Pairing. Pairing is seen when a team completely cracks under the pressure. Odd as it may sound, pairing can be thought of as a form of mating whose offspring is a new team (which paradoxically usually goes on to repeat these behaviors again down the road). Pairing sometimes shows up in the form of a coup, and in the trial team context we often see new law firms being brought in at the eleventh hour, the first chair being thrown off the case, or a full blown departure of the team's subordinates.

All these behaviors reflect a subconscious desire to make the anxiety go away, and it is all subconscious. Nobody really wants to behave in these counter-productive ways. The problem is that the person doesn’t know that he or she is really operating out of fear. However, unless you have a team that has both been educated about these behaviors and has the emotional wherewithal to rise above its own psychology, it's very hard to pull a team back together.

So, what is a leader of trial teams to do? Here are my suggestions.

1) Keep cool. A leader must never lose his or her cool when these dysfunctional patterns occur. This is especially difficult as it is often the leader who is under attack by the team.

2) Calmly diagnose. The leader must coolly diagnose what is causing the anxiety.

3) Describe reality. The leader must then accurately describe the reality.

4) Do NOT blame. The leader must not under any circumstances blame the rest of the team. Do this during these critical moments, and you'll lose the team for good. 

5) Talk about the problem. The leader must talk through the issue and tackle the thing that is causing the anxiety head-on. Hopefully, the team will reengage and their bar for what triggers their anxiety breakdowns will now be higher.

Want to learn more about trial team dynamics and group dynamics generally? Try these sources:

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Tags: Litigation Consulting, Litigation Management, Psychology, Management, Leadership

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KenLopez resized 152

Ken Lopez founded A2L Consulting in 1995. The firm has since worked with litigators from all major law firms on more than 10,000 cases with over $2 trillion cumulatively at stake.  The A2L team is comprised of psychologists, jury consultants, trial consultants, litigation consultants, attorneys and information designers who provide jury consulting, litigation graphics and trial technology.  Ken Lopez can be reached at lopez@A2LC.com.

ryanflax blog litigation consultant 

Ryan H. Flax, Esq., Managing Director, Litigation Consulting, joined A2L Consulting on the heels of practicing Intellectual Property (IP) law as part of the Intellectual Property team at Dickstein Shapiro LLP, a national law firm based in Washington, DC.  Over the course of his career, Ryan has obtained jury verdicts totaling well over $1 billion in damages on behalf of his clients and has helped clients navigate the turbulent waters of their competitors’ patents.  Ryan can be reached at flax@a2lc.com.

dr laurie kuslansky jury consultant a2l consulting
Laurie R. Kuslansky, Ph.D, Managing Director, Trial & Jury Consulting, has conducted over 400 mock trials in more than 1,000 litigation engagements over the past 20 years. Dr. Kuslansky's goal is to provide the highest level of personalized client service possible whether one's need involves a mock trial, witness preparation, jury selection or a mock exercise not involving a jury. Dr. Kuslansky can be reached at kuslansky@A2LC.com.

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