Success at trial almost always requires a team effort. While teamwork is largely beneficial, it’s important to understand how the dynamics of a team can introduce potential problems. One of the most important side effects to be aware of is groupthink.
What is Groupthink?
Groupthink is making poor decisions as a result of team members prioritizing the team dynamic over the case. They may have a strong desire to fit in and be seen as team players, or there may be a culture that discourages dissent. Group members then become reluctant to express doubts or alternative viewpoints, and the team achieves a consensus that may not be the most rational decision.
Everyone Must Be Heard
Everyone on the trial team must both be heard and encouraged to voice their opinion. Every “but” and “however” is a potential courtroom objection, cross-examination question, or doubt in the jury room.
When it comes to questions of fact, sometimes the non-lawyer or junior team members will think the most like jurors since they have the closest life experience to them. Senior attorneys who have spent too long working on the case or too long in an area of the law may have too much of an insider’s viewpoint.
Even legal questions shouldn’t be left to only the senior lawyers. A new associate’s “out there” idea may actually scratch on a loophole that opposing counsel is desperately trying to find and exploit. A consulting firm can also bring that outside perspective that forces the team to examine things in new ways.
Use a Jury Consultant
Even seasoned trial attorneys sometimes never fully “get” jurors. An attorney lives and breathes a certain area of the law, while a juror is literally a random person off the street. Attorneys do gain experience in how to present to jurors but may also carry biases based on past wins or losses or be too attached to the current case to think objectively.
Jury consultants can dedicate much more time to studying jurors in general, as well as how they will respond to specific issues. This may include focus groups and other services the main trial team simply doesn’t have time to perform. Finally, the jury consultant isn’t paid to agree with the trial team but to challenge them and make sure they’ve considered all perspectives.
Hold a Mock Trial
Holding one or more mock trials can also help you avoid groupthink. First, getting mock jury opinions from people outside of your trial team can shift thinking by raising issues group members subconsciously dismissed and possibly identifying issues no one in the group thought of.
In addition to outside opinions, the competitive nature of a mock trial changes the team dynamic. People want to win, and the expectation of attacking the case like opposing counsel would provide cover for raising arguments that might have seemed too disagreeable to bring up in previous group meetings.