Can "Red Teaming" Improve Trial Outcomes?

by Jonathan Carey, May 24, 2016

Some say litigation is like war. If so, should you consider using “red teaming,” one of the most powerful tools now used by the US military?Red teaming encourages leaders to reevaluate a strategy precisely when it becomes unanimous and unquestioned. Red teaming helps to temper the complacency that often follows success.

After the 9/11 terrorist attacks, the military learned that its tendency towards greater organizational agreement made it less likely to recognize new threats (see table below). Now, when “groupthink” arises, leaders create a red team of people with a fresh perspective to play the role of a thinking enemy that will challenge an established team’s core assumptions. Red teaming with outsiders – who do not share the same educational background, culture, technical knowledge or mindset as the core group – can force the group to assess potential unforeseeable and uncontrollable threats in order to improve outcomes. A red team’s ability to produce valuable insights seems to outweigh concerns about its disruptive potential to “upset the apple cart” at the end of a lengthy and careful planning process.

By the eve of trial, you have probably worked on your case for a long time. You and your team may have spent thousands of hours developing and executing an approved plan and strategy. Like any small team working together under stress, the more time you spend together, the more you may begin to agree on the issues. However, it is at this point that you might want to hit the pause button: Consensus thinking may lead trial teams to make popular decisions, yet yield suboptimal outcomes.

Litigation red teams try to find holes in your strategy and case narrative. They are generally small, new to the case, and comprised of people who are able to think outside-of-the-box. They exist not to tear down your plan, but to expose weaknesses and gaps before you present your case to a real jury. Once their findings and suggestions are evaluated by the trial team, the red team will cease functioning and its members will return to their normal roles and tasks.

While a mock trial may provide you with a fresh perspective, mock jurors usually lack the in-depth engagement with your team and case issues you may need to optimize your case presentation. Trial presentation designers often have the right skills and experience to do a better job of red teaming for litigators. Why? They are usually brought in to meet with a trial team at the end of the long trial preparation process when groupthink may be most common. They are experienced at identifying implicit assumptions that your team may need to articulate to a jury. They are also able to turn your proposed case themes into test visuals to share with mock jurors to help you determine the most persuasive evidence and arguments to present to real jurors.

Some trial presentation designers may simply create what you tell them to create. The best designers, however, are inquisitive and listen to your case with fresh ears, and ask focused questions to understand how to best help you prepare a winning presentation. These questions can be exactly what your team needs to hear in order to challenge potentially mistaken assumptions about your position and plan.

By taking the time to have an outside presentation design team actively probe your case like a red team, not only will you reap a more effective opening statement and closing argument presentation, but you will be more prepared to deal with potentially unforeseen adversities in front of a judge or jury.

The History of Red Teaming After 9/11

Red teaming gained favor among military leaders after the 9/11 terrorist attacks highlighted the failure to incorporate new potential threats into their Cold War mindsets. The 9/11 Commission Report confirmed “that the most important failure was one of imagination.”3 Because of this inability to think outside-the-box, nearly everyone ignored George Tenet, the Director of Central Intelligence of the CIA, when he warned that “we are at war” with al-Qaeda in 1998.

Even as late as September 4, 2001, Richard Clarke, the White House staffer long responsible for counterterrorism policy coordination, asserted that the government had not yet made up its mind on al-Qaeda’s actual threat to national security: “Is al Qida [sic] a big deal?” A week later, the answer to his question answer was clear.

Today, senior military leaders who understand the dangers of too much agreement use red teaming to try to anticipate new threats and to challenge groupthink whenever it arises.

1 The Applied Critical Thinking Handbook (Formerly the Red Team Handbook) Version 7.0, 2015, A product of the TRADOC G2 Operational Environment Enterprise, University of Foreign Military and Cultural Studies.2 Janis, Irving L., Oxford, England: Houghton Mifflin, Victims of groupthink: A psychological study of foreign-policy decisions and fiascoes. (1972). viii 277 pp.3 National Commission on Terrorist Attacks. (2004). The 9/11 commission report: Final report of the National Commission on Terrorist Attacks upon the United States. Official Government Edition.

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