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The Advantage Blog

  • Christopher J. Dominic


September 4th, 2012

I recently came upon a phrase in an article by Maggie Koerth-Baker in the New York Times entitled The Mind of a Flip-Flopper that was a refreshingly succinct way to say something I say (not quite as well) often: “Stories are more powerful than data…because they allow individuals to identify emotionally with ideas and people they might otherwise see as ‘outsiders.’” This was a quote from Timothy Wilson, a psychology professor at the University of Virginia who studies how we “change our minds and behavior.” For those trained in logic, this can be a disconcerting finding. Regardless, if you are an advocate, it should be a Maxim that you do not forget.

The persuasiveness of stories comes mostly from the fact that it is a language we all understand. We have found that while many advocates buy into this idea at a theoretical level. However, all too often it is easy to fall into the pattern of simply throwing facts out without the structure of a good narrative to make sense of them (this technique has been derisively referred to by some as “stack-a-fact”). While I have seen plaintiff advocates under-develop their central frame and narrative, this trap appears easier to fall into when one is on the defense side of the aisle.

As an example, a few years back we were working for the defendants in a large class action discrimination case. Defense experts had done some very impressive work doing multiple regression analysis to show that promotions in the company were happening more-or-less in a normal fashion. Another way to look at it was that the mass data showed no pattern of discrimination.

Mock jurors heard individual horror stories of discrimination from class members and heard of the studies the defense had done and how they were valid and reliable. I should also note that the mock trial was being run in one of the most educated venues in the country. So how did the deliberations go? They went something like this:

JOHN: “Oh man, did you hear that story from Sheila about her experience at the company?”

EVA: “Yea, but the studies showed no special pattern. Maybe she didn’t get promoted because of poor performance?”

JENNIE: “Well maybe, but what about that guy Howard, his story was pretty compelling. I really thought he got a raw deal?”

SAM: “Guys, two individuals with remotely related stories are not a ‘trend.’”

JIM: “You can make statistics say anything. Lies, damn lies, and statistics–I just don’t trust it.”

GINA: “If it looks like a duck and quacks like a duck, then it’s a duck.”

In the end, the stories from the individuals tended to beat the results of the data analysis in deliberations. Why, according to Wilson, “Once you care about a character [in a story]…you can find a way to fit them into your identity.” Jonathan Haidt, a Professor of Psychology who recently moved to New York University explains in the same article,

“We fight it out by throwing arguments at each other and are upset when they have no effect…It makes us accuse our opponents of bad faith and ulterior motives. But the truth is that our minds just aren’t set up to be changed by mere evidence and argument presented by a ‘stranger.’”

As far as our case, we learned a great deal that day about just how much our strategy needed to change. We decided the solution was to fight “fire with fire.” We had plenty of examples of individuals who could tell a positive story about how hard work and strong performance led to rewards from the company in many ways including promotions; we were simply failing to use them to our advantage. Once we could create our own “trend” of individual stories, we could then support it with data. Unlike the mock jurors that were forced to chose between stories and data, the jurors in the actual trial got to hear a story that rang true to them, see witnesses that they could relate to and identify with, and hear see data that supported the framing, themes, and arguments in the case instead of the data being expected to “speak for itself.”

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