Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm: 


The earliest days of the Trump presidency, the Trump campaign, and Trump himself have all posed quite a bit of a quandary for social scientists. The reason for that is, while all politicians select, exaggerate, and sometimes tell an outright lie, Donald Trump seems to have a relationship to the truth that is strained to an unprecedented degree. From the crowd size at his inauguration, to the number who illegally voted, to the allegations of the Obama administration wiretapping Trump Tower, these demonstrable falsehoods have continued a chain stretching back to earlier whoppers like Ted Cruz’s father having something to do with the JFK assassination, and, of course, Barack Obama’s Kenyan birth. In that context, how did candidate Trump and now President Trump maintain the support of 40 percent or more of the American people? After all, the social scientists will point out that credibility is key, and at the national level of politics, credibility is supposed to be especially fragile. When it comes to Trump’s communication, the sages have said, “Surely, he can’t keep this up,” and have been saying it now for more than a year. Yet he keeps it up. How? 

The answer, according to a recent Scientific American article by Jeremy Adam Smith, has to do with the type of lies. There are “black lies” told with bad intent and “white lies” told for a noble purpose, and in between, they say, there’s something else: “blue lies,” told for the purpose of helping some and hurting others. Blue lies serve a social purpose in reinforcing group identity and helping ‘our team’ against ‘their team.’ Referring to research from the University of Toronto’s Kang Lee, the article notes, “If we see Trump’s lies not as failures of character but rather as weapons of war, then we can come to see why his supporters might see him as an effective leader.” One of the studies from Lee and his colleagues observes that blue lies, the kind that build solidarity of one group against another, tend to increase as children get older and more socially sophisticated. But the blue lie is not unique to childhood, or to its close cousin, politics. Instead, I believe that these false beliefs that are resistant to the normal checks because they serve a social function can exist in litigation as well. What’s more, I think it can apply at several levels, affecting the jury, the witness, and the advocate. In this post, I’ll address each, and also share my own thoughts on the way the blue lie is best addressed. In each case, I believe it is not enough to call out the lie as being false. In addition, to address that social function, it is also necessary to call it out as not being useful as well. 

The Juror’s Blue Lie

A key realization in any small group context is that shared beliefs create affinity, and this includes false beliefs. For example, contender a panel of potential jurors who believe that immigrants tend to commit more crimes, and they’re sitting for a case where that belief would potentially matter. In that situation, it won’t help to try to show them that the belief is false. It is false since immigrants, legal or otherwise, are on average actually less likely to commit crimes than other people living in the U.S., but you won’t get that point across in voir dire or trial. The solution, other than striking the potential jurors, is to focus on the lack of usefulness of the belief. Broadly, and from their perspective, perhaps that belief isn’t useful because the country has a right to control its borders, and that right shouldn’t hinge on whether immigrants commit other crimes or not. And, in this specific situation, perhaps the belief isn’t useful because it tells you nothing about this case, this person, these charges. 

The Witness’s Blue Lie

Witnesses swear to tell the truth, and the vast majority intend to and try to. But inevitably, the witness’s experiences, outlook and goals will put a filter on that truth. One such filter might be the blue lie that’s intended to help ‘your team’ rather than their’s. Take the doctor defendant in a professional negligence case, for example, who thinks it’s helpful to say that a good doctor never makes mistakes, or always documents every aspect of care, or always fully informs a patient about all risks. These idealizations will usually create lower credibility and higher liability than an honest admission of imperfection would. The message when preparing that witness is, that while it might seem useful to say or to agree with good things about yourself and your group, those blue lies are a setup, raising the stakes in order to set the witness up for failure. 

The Advocate’s Blue Lie

There is a tension in every trial lawyer’s role. To assess and potentially settle a case, they need a clear-eyed and neutral view of the case, warts and all. But to be a zealous advocate for the client, they need to see their own case in the best possible light and the other side’s case in the worst possible light, and it helps if the attorney believes it. For some lawyers, the training and courtroom experience of the zealous advocate wins out. During the long march to trial, they become enamored of the strengths and, at least partially, blind to the weaknesses. They’re telling themselves and telling their clients that they’re right on nearly everything and the other side is wrong on nearly everything. The solution, that should be obvious to experienced advocates, is to set aside the blue lie that’s telling you your own case is perfect. Whether right or wrong, it is most useful to prepare in a way that gives as much credit as we can to the other side. In planning a mock trial, let’s give them the benefit of the doubt and assume they win the close calls on the legal rulings. In crafting a theme, let’s assume jurors will at least tacitly agree with the other side’s greatest strengths. Setting aside the blue lies of advocacy, the most useful question is, “How do we get them on our side even in that worst case scenario?”


Other Posts on Deception: 


Image credit: DonkeyHotey, Flickr Creative Commons, edited. 

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