I recently read a Wall Street Journal article with the same title as this post, “When we all think the same, watch out.” I smiled when I saw it because I was already thinking I could figure out where this was going. As it turned out, it related to the economy and the factors that drive the stock market or other financial indicators and how the market may not do what “everyone” expects. But, I was thinking about another aspect of this. And, the concept of “when we all think the same, watch out” is essentially a warning against groupthink. What struck me in our world of working with trial lawyers and litigation teams is how often we have found them engaging in groupthink, or almost at that extreme. So, “when we all think the same, watch out” should be a truism in litigation as well. It is often our job as trial consultants to provide an alternative perspective, to show that there are alternative ways of viewing a case. It is perhaps easier to be “on the team” and cheer the team along than to try to hold back the team and provide the devil’s advocate perspective. Advocating positions contrary to one’s own client requires a careful approach and some clients, both plaintiffs and defendants, have very unrealistic expectations. Providing a “reality check” is part of what trial consultants do. It is far better to find out if one’s perspective is wrong in a forum where it doesn’t count – in a mock trial – rather than to be proven wrong by losing in a forum when it does – at trial. When everyone is thinking the same way, there may be no one to say, “Wait a minute, let’s test this out.” Many years ago I had a smart client say “I believe the case is worth $X; my client things it is worth $Y. One of us wrong, let’s find out now which one.” This is how it should be. Beware of thinking the same as everyone else, but if you find yourself there, stop, step back, and ask or test to be sure before proceeding. This is very true in litigation, it is equally true in business, politics, war, or any other human endeavor.
Groupthink is a dangerous social psychological phenomenon. It was first defined by Irving Janis in 1971 as pressures toward uniformity due to group members’ desire to agree with their leader. Groupthink is most likely to occur when: (1) the group is cohesive; (2) there are structural faults in the group (such as an absence of outside information); and (3) there is high stress resulting from an external condition. When these conditions exist, concurrence seeking, that is, trying to get everyone in the group to agree on a decision (any decision), is often a stronger motivational force than making the correct decision. Applied to the world of litigation in which my company provides consulting services to attorneys and their clients, it is often the case that the majority of people on the trial team believe the case is worth a certain amount of money. When asked why, the response is usually, “Well, based on my/our experience on similar cases.” Experience on similar cases may be helpful, but it should never be a determining factor in the present case that, of course, has an unknown outcome. (Keep in mind we are always retained before, not after, the mediation, arbitration, or trial.) Often, when we are working for a defendant, the insurance adjuster undervalues the case, wrongly believing this or that about what people on the jury will do. In a similar fashion, plaintiffs, particularly those who are involved in a personal injury case, often overvalue their case, wrongly believing it is worth multi millions just because the defendant has the resources to pay whatever the jury awards. When this happens, the astute attorney will contact us and say, “Let’s conduct some mock trials to find out what the case is REALLY worth, as opposed to what we think, and hope, it is worth.” This results in a lot of teeth gnashing on the part of the people who have, until they observe a mock jury deliberate on their case, been part of a groupthink situation. It seems that finding out one was wrong, often very wrong, about the value of the case is a painful process for some people, who have a vested interest in perceiving the facts of the case from their limited and short sighted point of view. The next time you think “everyone” agrees with your point of view, watch out. You may have fallen prey to groupthink.
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