In the last issue of this newsletter, we brought to you Part #1 of an article written by Dr. Peter Sandman titled Lawyers and Outrage Management – Why Do Attorneys Usually Dislike Outrage Management? You can read that article here.
We hope you agree that this article is still very much on-point and relevant, with lessons for lawyers and non-lawyers.
Today, we bring you Part #2 of that paper, below.
What Can Outrage Management Offer the Legal Process?
by Peter M. Sandman
First of all, it is important to recognize that litigation is largely about outrage. In assessing any controversy, it is useful to imagine a triangle whose corners represent three key motivators: greed, outrage, and ego. People oppose each other because they want to do themselves good (greed), because they want to do their enemies harm (outrage), or because they want to feel better about themselves (ego). Which of the three most distinguishes prospective plaintiffs who decide to sue from prospective plaintiffs with the same damage and the same chance of winning who shrug off their grievances? Are the people who sue really more money-hungry than those who don’t? Or are they angrier? I think it’s far more often the latter. Sometimes the outrage is justified by the defendant’s actual misbehavior and the plaintiff’s actual harm; sometimes it’s justified by the misbehavior without the harm; sometimes it’s justified by neither. Justified or not, it is usually outrage that gets people to sue.
Note that I am talking about individual plaintiffs here – people who see themselves as victims of corporate malfeasance and want justice or revenge or vindication. When companies sue each other, greed and ego are likelier motives than outrage. When an activist group files a lawsuit, more altruistic motives like setting a precedent and stopping harmful behavior tend to coexist with greed (the group wants media coverage, new members, contributions) and perhaps again ego. But individual plaintiffs are motivated chiefly by outrage.
Interview toxic tort plaintiffs on the day their cases go to court, and ask them what’s uppermost in their minds. Occasionally one will say, “I hope I get enough money to retire to Tahiti.” But a far more common response will be, “The son-of-a-bitch never even apologized!” Outrage, not greed, keeps plaintiffs going. Of course the plaintiffs’ attorneys are motivated largely by greed; their outrage is strategic. (That’s not meant to be an insult – readers who know my consulting rates know I have nothing against greed.) Lawyers try lawsuits for a living. But the plaintiffs themselves are usually more outraged than greedy. Yet the companies defending the lawsuits often think the plaintiffs are just greedy, and tend to act on that false assumption.
Now turn it around. What motivates the companies? The plaintiffs are accusing you at least of incompetence and probably of malevolence; they’re costing you endless hours and dollars. Odds are you’re outraged. But the plaintiffs undoubtedly think you’re greedy.
Much litigation, in short, is a conflict between an outraged plaintiff and an outraged defendant, each of whom misdiagnoses the other as greedy and each of whom is represented by a greedy (that is, professional) attorney. No wonder cases are so hard to settle.
To get a case to settle (when settlement is wise), each side’s attorney must persuade his or her client to abandon outrage for greed – that is, to act out of rational self-interest. Early on, plaintiff and defendant alike may well be determined to fight to the end “no matter what the cost”; they tend to call it principle, but it’s pretty clearly outrage. Their attorneys – especially the plaintiff’s attorney – understand that they must echo the client’s outrage or risk losing the client. “I can’t believe what they did to you! We’ll get the bastards whatever it takes.” Of course the plaintiff’s attorney’s own greed (rational self-interest) is usually on the side of settling, especially if the attorney took the case on contingency; one-third of a settlement without the burden of going to court is undeniably attractive. (The defendant’s attorney is likelier to be paid by the hour, and therefore likelier to be content to go to trial.) But in the early days, wise plaintiffs’ attorneys rarely recommend settling.
Now flash forward a year or so. For both defendant and plaintiff, the discovery process is revealing a more nuanced reality than either believed possible, as each side learns more about the other side’s strengths and its own weaknesses. Trial is looking less and less like certain victory and vindication, more and more like a crapshoot … and a possible humiliation. The defendant is also worrying about mounting trial preparation costs, and the possibility of a big-money punitive damages finding. The plaintiff’s attorney isn’t echoing the plaintiff’s outrage so much any more. Instead, he or she is warning that proving negligence will be hard, that under the Daubert ( “junk science” ) precedent even finding a witness to claim causation will be hard, that it might be wiser to convert the outrage into a pain-and-suffering damages claim and a higher settlement. Of course if the plaintiff refuses to settle and the case goes to court, the plaintiff’s lawyer will revive all that outrage for the benefit of the jury. But in the all-important pretrial period, the plaintiff’s lawyer is doing everything possible to ameliorate the plaintiff’s outrage.
Paradoxically, it is the defendant’s lawyer who may exacerbate the plaintiff’s outrage, and thus force the case to trial – or, more likely, delay the ultimate settlement and make it costlier. A large fraction of the risk controversies I work on have reached the point where at least one outraged stakeholder, usually more, has initiated a lawsuit. Typically there is legal correspondence in the file that almost looks like it was designed to keep the plaintiff outraged and thus keep the lawsuit alive. I assume these “lawyer letters” aren’t designed for that purpose; they are designed to stake out a claim the defense might want to make in court later, and to make it clear to the plaintiff how difficult and painful it will be to take the case further. Such a letter would have made a greedy plaintiff hesitate … but often it makes an outraged plaintiff all the more determined. This is an extraordinary irony. In the courtroom, it is the plaintiffs’ attorneys who keep jury outrage stoked, and they do it on purpose. But outside the courtroom, before a case gets to the courtroom, it may be the defense attorney who keeps the plaintiff’s outrage stoked, unintentionally. Outrage management expertise could help prevent this unintended outcome.
My main point here is that both preventing lawsuits and resolving lawsuits are largely about outrage management. Outrage management is the core of deterring prospective plaintiffs from suing (or prospective participants in a class action from joining the class); it is the core of persuading those who begin a lawsuit (defendants as well as plaintiffs) to accept a settlement offer.
As for winning lawsuits, once again outrage management is key. Now we are talking about the outrage of the jury (and the jury pool). The clearest example in U.S. jurisprudence is punitive damages, which are explicitly about outrage. The Exxon Valdez jury hit the company for billions in punitives mostly because it felt that Exxon had failed to show contrition. I do understand that there are powerful legal reasons not to acknowledge liability. As I will discuss in the last section, showing contrition without acknowledging liability may be a little self-contradictory, but it isn’t impossible or even all that difficult.
And showing contrition is essential to avoiding big-money judgments. The same principle applies in much smaller cases. Acknowledging misbehavior, saying you’re sorry, demonstrating that you have learned your lesson – these fundamental outrage management strategies are central to reducing punitive damages. And for the plaintiff’s attorney, of course, opposite strategies help fan the flames of jury outrage in order to maximize the punitives.
Just as important is the tendency of juries to stretch the law, if necessary, to accommodate their outrage at unsympathetic defendants. Much has been written about juries’ willingness to dip into corporate defendants’ deep pockets, to make a wealthy company pay even when the evidence that it actually caused that poor child’s leukemia is weak. But it isn’t just the company’s wealth that disposes the jury to bend the law. It is also the company’s arrogance and unresponsiveness. In a typical case, the evidence that the company’s emissions caused the plaintiff’s illness is weak, but the evidence is pretty strong that the company didn’t care enough about its emissions and their possible health effects. The plaintiff’s attorney works hard to keep the jury outraged at the company’s cavalier attitude. The defense attorney, on the other hand, may not have much of a strategy for addressing the jury’s outrage, preferring to stick to causation.
Juries sometimes have the will power to be outraged at a defendant and nonetheless reject the plaintiff’s claims on technical grounds. But unless a case is ironclad, it’s not a good thing to count on. That leaves two options for addressing the outrage. The defense can try to persuade the jury to abandon its outrage. Or the defense can concede the outrage and the behavior that has led to it, and work to mitigate it. The latter is usually wiser. Essentially, a jury that feels it must “prove” the defendant merits its outrage (because the defense hasn’t conceded as much) may well find for the plaintiff for that purpose alone. (There is a third option: Ignore the jury’s outrage, make a strong technical case, lose at the trial level, and appeal.)
Outrage management can also have a decisive influence on how evidence is presented. For example, it is standard courtroom tactics to acknowledge negatives you can’t avoid, and to do so proactively rather than waiting for the other side to nail you with them in cross-examination. (It surprises me how often my clients and their attorneys won’t let me do the same thing outside the courtroom.) But this principle is typically not extended to expert testimony. There is very good reason to believe that an expert witness who says X is about 75% right – right about A and B and C but not about D – is going to be more credible on X’s behalf than one who claims X is 100% right. And the worst of all experts is the one who claims on direct examination that X is 100% right, then on cross-examination reluctantly concedes the 25% where X may well be wrong. Yet attorneys spend a lot of time negotiating with expert witnesses, trying to find compromises between the expert’s two-sided judgment and the attorney’s preference for one-sided testimony. My complaint here isn’t about ethics. It’s about effectiveness. One-sided arguments work fine with uninterested publics. Attentive stakeholders – juries, for example – are much better persuaded by two-sided arguments.
This is especially true if the argument is coming from the defense. In general, exaggeration is an excellent strategy for exacerbating outrage, but a poor strategy for mitigating outrage. In or out of the courtroom, the side trying to get people riled up will find it useful to overstate its case as much as ethics, law, and credibility permit. The side trying to get people calmed down, on the other hand, will find it useful to stake out the middle ground. A well-fought controversy is normally a fight between one extreme (argued by the get-’em-outraged side) and the middle (argued by the calm-’em-down side).
Conceding one’s opponents’ strongest arguments makes sense, in short, when the audience is paying close attention to both sides or when your side is the one trying to reduce the audience’s outrage. If you’re defending a tort case before a potentially outraged jury, both criteria are met; conceding the plaintiff’s good (and provable) arguments should be a no-brainer.
I understand some of the reasons why lawyers often ignore this advice. A defense attorney hoping to succeed with a summary judgment motion, for example, will need to argue that there is no way a reasonable juror could find in the other side’s favor. The motion is helped by a thoroughly one-sided expert report, undercut by a balanced report. If the motion fails, of course, my reasoning explains why a two-sided expert would be more credible on the witness stand. But the expert is stuck with that one-sided report.
Regulatory law is even more influenced by outrage than courtroom outcomes are. Juries and judges confront one case at a time, and their key decisions are dichotomous: guilty or not guilty. But regulators confront cluttered desks piled high with far more cases than they have the resources to pursue. Like prosecutors and the plaintiff bar, they have to pick – and naturally they tend to pick the lowest-hanging fruit. Once they decide to pursue a particular case, moreover, regulators are the proud possessors of “regulatory discretion” – a far-from-dichotomous range of possible actions from the very tough to the very lenient.
What determines which cases the regulator chooses to go after, and how harshly the regulator decides each case? Certainly the regulator’s assessment of the seriousness of the hazard is one key factor. So is the law. But just as important is community outrage, often expressed through political pressure. When stakeholders are angry and upset, and have built up a head of steam and attracted the attention of politicians, regulators take notice. They may well look for a regulatory rationale to do what outraged stakeholders want them to do … even if the technical risk is small. But when stakeholders are calm and politicians are uninterested, regulators are far less likely to overreact to a small technical risk.
Unless, of course, the regulators themselves are outraged. I remember a phosphate industry client that was surprised when a state environmental regulator came down hard on what seemed to be a minor infraction, even though stakeholder outrage was low. “What’s your prior experience with this guy?” I asked. “Not much,” my client answered. “He was involved a few years ago when we had a pretty significant accident, but we didn’t like where he was going with it and we managed to get the case kicked upstairs to headquarters, so he wasn’t really very involved.” In other words, my client went over the local regulator’s head back then … and now it’s payback time.
Whether the outrage in question is the regulator’s, the public’s, the jury’s, the plaintiff’s, or the defendant’s, the point is the same: Managing a legal controversy usually entails managing outrage. Some lawyers are naturally good at it. Some aren’t. Few realize there’s actually a field there from which they could benefit.
Copyright © 2002 by Peter M. Sandman, Reprinted with Permission
The next and final installment of this article, What Are the Genuine Areas of Conflict Between Law and Outrage Management?, will run in this blog a few weeks from now and in the next issue of our newsletter, Crisis Management Today.
Want to skip ahead and read the entire article? You can do that here.