It's over. And that feels good. The campaign taught us several Work Matters lessons. Here goes.
- No. 1: Sarah Palin blaming reveals the fundamental attribution bias.This cognitive bias tells us that when something goes bad, we search for the one reason it did. Our minds want to organize what is, basically, a disorganized world. As the novelist Tom Clancy says, "The difference between fiction and real life is that fiction must make sense." So I listened to the radio talk shows and the bloviating pundits the last two days, and they all seem to want to blame Palin for the loss. That's the fundamental attribution bias in action. The same thing happens in employment law. Something goes wrong at work, so someone must be responsible -- and thus disciplined or terminated. Find that employee and all will be well. No, it won't. Most issues reflect systemic problems, not individual ones -- in politics or at work.
- No. 2: Trust the good data. Dewey v. Truman. Nice story. Solid narrative. Won't ever happen again. The polls, when done right, are accurate. Pew and Rasmussen nailed the final result. Nate Silver of the FiveThirtyEight Web site did as well. Listening to the conservative talk shows driving to work, driving home and before turning the lights out, you'd think they lived in an alternate universe, a la "The Twilight Zone." It was all over for McCain/Palin a month ago. As John Adams said in defense of British soldiers, "Facts are stubborn things." While inconvenient, they are still real. The same, again, is true with employment law. Jury consultants I have worked with over the years use focus groups. When well picked and given both good and bad facts -- the biggest mistake employers make is to be drinking the Kool-Aid of their own case when presenting to a focus group -- they give a pretty accurate result of what will happen if you go to trial. Believe the data.
- No. 3: Use your own story. Don't hijack the others side's. A few days after Palin was named as the veep choice, I blogged on it, saying it was a persuasion mistake. Why? Obama's narrative was change. Trying to hop on the change wagon with Palin"s selection only reconfirms the other side's narrative, it did not create McCain's own. Same with employment law jury trials. I have seen employers, when getting up to do their opening, rebut the plaintiff's opening instead of creating their own reality. Again, rebutting the other side's story only serves to have the jury hear the plaintiffs version twice and your version once(and garbed with the plaintiff's frames at that).
- No. 4: It's not about you, it's about them.John McCain's campaign stressed, over and over again, his war record. To do so made the campaign of persuasion about him, not about them (the voters). Obama always made it about the other, not about him. Am I saying that personal stories have no place in a campaign? No. But the personal story must be something that they can identify with. Most have never been to war, but many were raised in poorer families, struggled to do well, and overcame the obstacles along the way. An archetype. Look at our current president. His narrative was redemption: I drank. I led a wasteful life. But I overcame it, surmounted the obstacles. Another archetype. Same with a trial. Back in the mid-1980, I tried an age case. The employer's narrative: We lost a lot of money last year, and to maintain an acceptable level of profitability as a publicly traded company, we had to let a lot of employees go. All true. But the jury cared about none of them. Zero. Can you change the facts? No, but you can change the story. So instead, say, "We needed to do a reduction in force, but it was done fairly and done to try and keep the best employees." A juror gets that.
- No. 5. Pick a story. Stay with it. Don't pile on.Obama
tinkered with his message. It morphed from change-we-can-believe-in to
change-we-need. Fine tuning is fine. Constant changing is not nor is
sending several messages at once. Obama pals around with terrorists.
He is a Socialist. He can't be trusted, because he is a celebrity.
Piling on only confuses people, when what they want is clarity. I have
seen employers actually change stories in a trial:"We fired him,
because he was a poor performer" becomes "Yes, and we also think he was a
thief." I actually read that in a trial transcript where I was hired to
do the appeal. The worst is when an employer, in responding to the
Equal Employment Opportunity Commission's investigation, decides that
if one reason for an adverse action is good, then five or six are better.
It often turns out that there was only one real reason, but the
employer, in responding, was afraid not to raise something. (Here is a
tip: when responding, get the facts, and have those who made the
decision at issue and who will need to testify about it at trial, read
and approve the content of the EEOC response. If the response is wrong, the plaintiff will use it at trial.)
That's about it. Your thoughts? In any event, congratulations and best wishes to our president-elect and his family.
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