Three Theories of Your Case

© 2015 by Bill Eddy, LCSW, Esq.

We live in an age of easy allegations and elusive truths. We all frequently get sucked into other people’s conflicts in which this is a problem. Whether you are a professional (lawyer, mediator, therapist, HR professional, manager, etc.), someone’s friend or family member, or a voter in an election, one of the hardest issues is figuring out who’s telling the truth and who’s acting badly. This problem is made much worse in a public winner-take-all adversarial process, which significantly clouds the ability to find the truth and protect true victims.

This article addresses the importance of having at least three theories of your case, and the damage that can be done if you only have one. This continues to occur over and over again, especially when it arises in the adversarial processes of litigation and elections. These two processes share a public winner-take-all style of decision-making. Let’s analyze this with two examples:

    • Pat alleges that Chris has sexually abused their child.
    • Representative Smith alleges that President Jones has committed fraud.

The First Theory

The first theory of the case is that the person making allegations is correct: That the other person really is abusive or fraudulent. You have to consider that possibility. There is a lot of abusive and fraudulent behavior in the world today. Children and voters need someone’s help to figure this out and protect them. There are many advocacy groups today and they often form in areas where there is not enough protection for a certain group, such as: children, battered spouses, victims of crime; or the need for protection from a certain group: terrorists, government over-reaching, financial swindlers, and so forth.

The point is that we need to seriously consider the issue when someone tells us about such a problem. Even mentally ill people can see the truth in many situations. We shouldn’t automatically discount what someone says, just because we may believe the person has distorted thinking for some reason. It’s respectful and calms people down to listen and take them seriously. Maybe the other person really is acting badly, and the child or the nation’s citizens need to be protected from this bad behavior.

The Second Theory

However, you should always consider a second theory: Perhaps the person making the allegations is not accurate, or is distorting without realizing it, or possibly even out-and-out lying. Perhaps the target of the allegations is totally innocent and not at all acting badly. Chris may not be sexually abusing the child; the President may not be committing fraud. After all, there are incentives today for making false allegations.

In separation or divorce, you may be able to get more money and time with your children if you can convince professionals or a judge that the child has been abused. This is because in many states, including California, the amount of child support is affected by the amount of parenting time you have, and the amount of spousal support may be affected by the presence of spousal abuse. 

In elections, there are similar incentives for alleging ignorance, fraud, sexual misconduct and so forth – you might win the election! But there are other reasons people say things that are vicious and not true.

Projection

Projection or projective identification are mental health terms that apply when a person says someone else is thinking something, feeling something or doing something that really describes the speaker rather than the other person. It is the speaker’s own thoughts, feelings or behavior being described, but the person truly does not realize it. This is an unconscious defense mechanism that is associated with mental disturbance and which seems to appear a lot in high-conflict legal disputes, such as custody disputes in family law.

For example, one parent honestly believes: “The other parent lacks empathy for the child and is insensitive to the child’s needs.” However, sometimes is it really the parent who is making these statements who lacks empathy and is insensitive – but can’t see it in themselves, so they project it onto the other person. Maybe they see the world as filled with people who are all-good and all-bad, so that they can’t tolerate any thought or behavior that’s even a little bit bad or it would mean they are all-bad themselves. So they project it onto the other person. While this is usually a fairly harmless mental health problem, once this dynamic gets into the legal system it can ruin people’s lives who are falsely accused of a wide variety of bad behaviors. In many cases, the target of such projections is actually quite innocent of the bad behavior.

While some people believe there’s always a grain of truth in any concern about someone else, this is not true when it comes to projection. People can project totally unrelated thoughts, feelings and behaviors onto someone else – because it’s not about the target, it’s about the person who’s projecting. The target may be acting just fine.

The Third Theory

But of course, you also have to consider a third theory: That both people in the conflict are acting badly. This can be true in high-conflict litigation and in politics. Maybe the first person is correct to say the second person is being abusive, ignorant, committing fraud and so forth. But maybe the person saying that is also being abusive, ignorant, committing fraud and so forth. When it comes to a legal case or an election, the “winner-take-all” approach really is inappropriate for handling this problem, because both sides may not deserve to “win.” This is a serious problem in today’s legal system and electoral systems, because people who are acting badly are getting rewarded just because the other person is acting badly and got caught first or looks worse.

High-Conflict People

One of the primary characteristics of high-conflict people is that they are good at getting attention and good at making allegations – some of which are true and some of which are false. Their emotional intensity can be very compelling and persuasive. And yet they can be completely distorting information or projecting. The question is whether a sharp dispute resolver will be able to figure this out (judge, mediator, friend, family member, etc.). When it comes to high-conflict people, a significant percentage of dispute resolvers are unaware of these dynamics and often get their cases backwards. Many people believe that they can tell whether someone is a high-conflict person by just looking at them or hearing them speak. While sometimes this is obvious, mostly is it not.

Many people with high-conflict personalities are more persuasive than the average person – at least in the short term, until somebody does enough deep research into their true behavior. So, in the example above, Pat may be extremely emotionally upset and say that Chris is abusing their child. A professional may believe that when a parent is emotionally distraught it means that they are telling the truth. In this case, the professional may fight extra hard to convince other professionals and a judge that the child has been abused by the other parent – and succeed. (Notice I did not give the parents genders, since I have worked with cases of mothers being accused of sexual child abuse as well as fathers, although the majority of child sexual abusers are men.) If the child was sexually abused, then this is a good thing. But if the child was not sexually abused, then this is a very bad result.

Or take the other example: Some people may be easily persuaded that the President committed fraud by Representative Smith, who is a highly persuasive high-conflict person. Smith may be skilled at speaking in extremes with an emotional punch – regardless of the facts. Smith may then persuade enough other people that it’s true, so that the President loses the next election. If the President had committed fraud, this would be a good result. But if the President hadn’t committed fraud, this could actually make the country worse off. In general, believing and following high-conflict politicians is a very bad idea.

Confirmatory Bias

This is a term that applies when someone has a theory and believes in their theory before doing their research. They then tend to find and emphasize information in favor of their theory, tend to discount information that contradicts their theory, and interpret neutral information as favorable to them. A good example of this was the interviewing of children in child care centers in the 1990’s, when extreme accusations of child sexual abuse and other horrors were made and confirmed by interviewers who already believed the allegations were true. Horrible tales of animals being slaughtered on the centers floors were confirmed by these interviews, yet thorough investigations showed that there was no blood of any type on the floors. Thus, some court systems established “taint” hearings to see if children’s testimony had been tainted by interviewers with confirmatory bias. (Ceci & Bruck, Jeopardy in the Courtroom, American Psychological Association, 1995.)

In politics, research shows that “highly partisan” Democrats and Republicans don’t listen seriously to new information, once their minds are made up about a candidate. And when they talk and listen exclusively to their own group, their opinions become even more negative toward the other candidate, rather than more open. (Haidt, J.The Righteous Mind: Why Good People are Divided by Politics and Religion. Vintage Books, 2012.)

Even professional careers can be ruined by acting on confirmatory bias, as the example of the District Attorney in the 2006 Duke University false rape case shows. He brought public allegations against several of Duke’s lacrosse players based on one witness’ report which turned out to be not credible. Why did this occur? The D.A. was in a heated race for re-election and his seemingly heroic public prosecution of this case appealed to many voters. This is a good example of politics and sexual abuse allegations overlapping. As the news program 60 Minutes said recently: "The entire time that we were reporting the piece, we were going against the grain," Radutzky tells 60 Minutes Overtime. "It seemed like most of the media and the public and government leaders had already made up their minds that the players were guilty."  (Retrieved on 8/7/15 from http://www.cbsnews.com/news/60-minutes-investigates-the-duke-rape-case/) The eventual result was that the District Attorney lost his election – and lost his license to practice law.

Thus, confirmatory bias leads to polarization, which fits well into the adversarial decision-making process; but fails families, some professionals and our nation in the long run.

What Should We Do?

We need to make sure to adopt at least three theories of the case when allegations are made, and to actively and equally consider each of them. If we do not do that, then we become part of the problem rather than part of the solution. The adversarial process of decision-making only works well for people who can think clearly and objectively despite the process. Otherwise, people who don’t consider at least three theories risk jumping to a conclusion and fighting so hard for it emotionally that decisions are made without accurate information. In these cases, many people are harmed – because their lives are ruined when they are not protected from abuse or their lives are ruined because they are falsely accused in a public process and their accusers often have no consequences.

As professionals, friends, family members and voters, it is important to keep an open mind, to continue to search for more information when we are involved in someone else’s dispute, and to equally consider at least three theories of the case so that we don’t end up causing more harm than good.

 

Bill Eddy is a lawyer, mediator, therapist, and the President of the High Conflict Institute. He is the co-author with L. Georgi DiStefano of It’s All Your Fault at Work: Managing Narcissists and Other High-Conflict People; and the co-author with Randi Kreger of Splitting: Protecting Yourself While Divorcing Someone With Borderline or Narcissistic Personality Disorder. High Conflict Institute speakers provide training to professionals in handling high-conflict legal disputes and managing high-conflict workplace situations. www.HighConflictInstitute.com.