Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm:

The government often plays a background role in civil litigation. An action, decision, or product from one party might meet the government’s regulations, for example. The question that raises is “Are the regulators trusted?” That question, it turns out, does not really have a simple “Yes” or “No” answer. Trust has been measured in fairly common ways, both in the social science research as well as in the practical experience of trial consultants. When it comes to the government, for example, the focus is often on what the government does and whether the citizen supports or opposes those actions. More recently, however, researchers are finding that there’s a need to look beyond just that functional ability to accomplish ends. One recent research study (Hamm, Smidt & Mayer, 2019) tests a three-layer view of trust as it relates to the government.

The layers of trust in this case come from organizational psychology, the parsimonious model is referred to as the Mayer, Davis, and Schoorman (or “MDS”) model, with the present authors applying it to government. The layers are:

  • Ability (to do the job),
  • Benevolence (having the best interests at heart), and
  • Integrity (doing the right thing).

When a party is credible on all three layers, the research shows, then we are willing to trust, and trust in this sense means being willingly vulnerable to the actions of another. In this post, I will look at how these three layers might apply in several contexts.

Trust in Government

Ability: Your message needs to address a presumption of governmental incompetence. “Show your work” applies to the justification for regulations, and to the extent that government relies on a broader community of private experts, show that.

Benevolence: Does the regulation or the regulator have your interests at heart? In today’s polarized climate, jurors might assume that the government is either with them or against them, depending on who’s in power.

Integrity: Does the government in this context follow a consistent set of values as well as a fair and uncorrupted process? Showing how regulators arrived at their decision or developed a regulation can help in establishing credibility for it and for the government generally.

Trust in Corporations

Ability: One factor in jurors’ views of corporations is that they generally see them as knowledgeable and competent. As often as not, that increases the company’s responsibility, because it creates a relatively higher burden for the company to have known about and prevented a problem.

Benevolence: A high proportion of the jury pool believes that they have little in common with corporations. Just 13 percent agreed in a 2018 survey we conducted, that business executives “share my values.” That lack of perceived common interest is probably the biggest barrier to corporate credibility.

Integrity: Acting in a way that is honest and transparent and follows the laws and the company’s own internal policies helps to show integrity. Even following a profit motive is not a bad thing if a profit motive is what encourages the company to do the right thing.

Trust in Witnesses

Ability: A witness should be competent in what she or he does, but the competence that will matter most to fact finders is the ability to clearly explain what these fact finders need in order to make a good decision. Expert witnesses aren’t the only ones who need to be teachers.

Benevolence: The decision makers in a court case have an interest in being fully and clearly informed. A good witness should explicitly and implicitly share that interest. That is why the greatest sin a witness can commit from the fact finders’ perspective is evasiveness. The subtext of the witness’ testimony should be, “I want you to understand the whole story.”

Integrity: A trusted witness is also going to be honest, consistent, and confident in their testimony. That is why it is important to convey the same substance in deposition and trial testimony, and to show the same demeanor when being questioned by your own counsel and when being crossed by opposing counsel.

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Other Posts on Credibility: 

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Hamm, J. A., Smidt, C., & Mayer, R. C. (2019). Understanding the psychological nature and mechanisms of political trust. PloS one, 14(5), e0215835.

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