By Patty Kuehn
Much of litigation is designed to identify “the what” or the facts. For a lawyer to describe “the why” or the explanation, requires intention, dedication and sometimes creativity. A party’s motivations matter to the fact-finder even though it is not legally required. The trier of fact is not only an assimilator of facts, but someone who judges the intentions of the parties regardless of whether they are presented.
As such, it is imperative for a litigator to uncover possible reasoning and motives to explore the most likely and persuasive account. Facts are important, but “the why” is critical.
Lesson from Lochte:
Ryan Lochte recently learned this lesson the hard way. Lochte, a 12-time Olympic medalist and reality TV star, is now a point of controversy. His actions in Rio were so scandalous, activists stormed the stage on Dancing with the Stars to protest, a first for the show.
Despite winning a gold medal at the Olympic Games in Rio, Lochte’s swimming prowess is not how he will be remembered. Instead, the ordeal he caused by lying to the public and creating a scenario that quickly spiraled into an international incident will supersede his accomplishments.
This diplomatic situation could have been avoided if Lochte explained the incident differently. His rationalization of why it happened dramatically altered the reality of the situation. Instead of being an embarrassing post-celebratory incident for him, it became a diplomatic debacle disgracing the Olympic committee and America.
Lochte reported to the media that he and three other swimmers were robbed at gun point by Rio police. Then and now, Lochte and Rio Police agree on two key facts: a gun was brandished and money exchanged hands.
So why does Lochte’s choice of explanation matter? Because, many stories are possible from the same facts. Here are additional facts consistent with both accounts of the event which factored in his explanation.
- Lochte and fellow swimmers Gunnar Bentz, Jack Conger and Jimmy Feigen leave a hospitality house early Sunday in a taxi bound for the Olympic Village.
- The four athletes are ordered out of a cab by an armed man.
- They are instructed to sit on the curb. All but Lochte sit.
- The armed man refuses to let Lochte and the swimmers leave until money is paid.
- The armed man takes money from Lochte, Bentz and Feigen.
- The armed man leaves the athletes’ credentials and cell phones.
- The swimmers walk away unharmed.
How Lochte described the event to NBC mattered:
"We got pulled over, in the taxi, and these guys came out with a police badge, no lights, no nothing -- just a police badge and they pulled us over. They pulled out their guns, they told the other swimmers to get down on the ground -- they got down on the ground. I refused, I was like we didn't do anything wrong, so -- I'm not getting down on the ground.”
"And then the guy pulled out his gun, he cocked it, put it to my forehead and he said, 'Get down,' and I put my hands up, I was like 'whatever.' He took our money, he took my wallet -- he left my cell phone, he left my credentials."
Contrast between Lochte and Rio Police understanding:
The Rio Police portrayal of what happened differs from Lochte’s version. The Rio Police denied being involved and accused the athletes of vandalism and fabricating the robbery story.
After interviewing witnesses and reviewing surveillance tapes, the police concluded the American athletes were drunk and vandalized the gas station before getting in a cab to leave. A security guard approached them and only used his gun to control them. The guard told them to get out of the cab and to pay for the vandalism before they could go.
Why is Lochte’s version so different from the police version? There are reasons people view experiences in this way. When something bad happens, people feel the need to come up with a compelling narrative account of what happened to understand why it happened. Lochte likely felt scared, defensive or angry during the incident. When he first talked to the media he may have still felt the heat of the moment. Or he may have tried to reconstruct the story from an intoxicated confusion. Or he may have intentionally sought to cover up misdeeds. We will never know his true reasoning.
Nonetheless, on that Sunday, Lochte had a choice of how to describe both what happened and why. The story he recounted could have been self-critical acknowledging his vulnerability and foolishness; or it could have positioned the him as an innocent victim (or somewhere in between). Facing these options, Lochte chose self-protection.
Example self-serving bias:
The motive of self-protection is strong, especially in a negative scenario. In psychology this motivation is referred to as a defense mechanism, also described as self-serving bias. It is a cognitive tendency where someone blames failures and shortcomings on outside forces instead of oneself. Lochte used this defense mechanism to try to protect himself, only it left him more controversial today than he otherwise would have been.
After a week of strong criticism, Lochte partially apologized. He apologized for his behavior that weekend, and “for not being more careful and candid in how I described the events of that early morning… I should have been much more responsible in how I handled myself and for that am sorry to (everyone).” Even though Lochte did not roll back on his allegations that the swimmers had been robbed at gunpoint by men posing as police, the story changed significantly.
Since a self-serving bias can arise in any situation (and for any party), considering alternative explanations is advantageous for any lawyer. This applies when investigating a client’s motives and also when examining possible rationale for the opposition.
Considering various explanations and reasoning can radically alter the view of a situation. Lochte’s approach resulted in his becoming not only the center of an international incident but also a suspect in a criminal investigation on foreign soil. He lost endorsements, respect and other privileges. His subsequent choice to apologize and slightly shift his explanation luckily dissolved the eminent international investigation and allowed him to participate on Dancing with the Stars. Nonetheless, had Lochte considered other explanations for why it happened (and his part in it) his future would be very different. Ultimately, facts are important, but “the why” is always critical.
Patricia (Patty) Kuehn, J.D., M.A., is a national trial consultant based out of Chicago, IL. After 20 years of applied litigation consulting Patty has studied and interacted with more than 10,000 eligible finders of fact. She proudly serves as President for this great organization, ASTC.