• Put T.o.M. On Your Team
  • March 3, 2015
  • Law Firm: Holland & Hart LLP - Denver Office
  • T.o.M stands for “Theory of Mind,” and it is a very academic name for a very practical concept that might determine the difference between an effective team and an ineffective one. That is a difference that should matter to most trial lawyers. In criminal law and more modest civil cases, trials still can be the work of the one courageous solo attorney. But in complex civil litigation, taking a case through discovery and trial is a team effort. Those teams can be either effective or dysfunctional - or they can vary from one to the other on a day-to-day basis.

    As members of a number of different teams, you’ve probably wondered what makes some of them work and some of them fail, and researchers have looked into the answer. If you think it comes down to the talents and intelligence of individual members, you would be wrong. If you think it has more to do with the power and style of the group leader, you would also be wrong. Instead, it boils down to just a few common traits broadly practiced by the team as a whole. A recent article in The New York Times' "Gray Matter" column, entitled "Why Some Teams Are Smarter Than Others," provides some intriguing answers that point to some practical implications for litigation teams. This post takes a look at both the research as well as the implications.
    The Research: Team Traits That Predict Success

    Fittingly, it is a research team, including professors in business and psychology, that has looked at this question over the years. As described in the Times article, the basic question of what makes some teams more effective across a variety of tasks has been addressed in two steps:

    Study One: Collective Intelligence Factors

    The first of the two studies discussed (Woolley et al., 2010) started with the basic question of whether more effective, motivated, creative, and intelligent teams are simply composed of more effective, motivated, creative, and intelligent individuals. Stated that way, it sounds a little obvious, but it turns out to not be true. A group isn’t simply an aggregation or an average of its individual members, but is instead its own animal, and what matters to team performance is the behavior of team as a whole. Specifically, the researchers measured both individual and group traits and identified what they called a "collective intelligence factor."

    The reasons some teams did better on a variety of logical, creative, coordination, and planning tasks could not be explained by average individual intelligence, extroversion, or motivation. Instead, it came down to three characteristics:

    1. Equality. Members of successful teams contributed equally instead of letting one or two team members dominate

    2. Emotions. Members of successful teams were more able to read emotions: They did better on a task that involved reading emotions just by looking at a photograph with a pair of eyes only.

    3. Women. More successful teams included more women. The researchers are careful to point out that this didn’t mean more diversity in gender, it simply meant more women.

    Study Two: “Theory of Mind”

    A new study published late last year (Engel et al., 2014) replicated study one, but while also looking at whether it makes a difference whether the groups are working in person or via online meetings, they found that the replication worked in both the in-person and online-meeting modes. That caused the team to question the role of emotion reading. It turns out that effective teams are not just more able to read emotions in someone’s face (something that wouldn’t be very effective in online meetings), but are instead more able to broadly adapt to others. Instead of simple face reading, it comes down to a broader "Theory of Mind" which the authors explain in the Times piece as the ability "To consider and keep track of what other people feel, know, and believe." This concept, unpacked in an interesting Ted Talk by Rebecca Saxe, boils down to an appreciation for the other in communication, similar to what I’ve written about in this blog as rhetorical sensitivity.

    Theory of Mind, or T.o.M., is a developmental trait: Infants and toddlers are self-centered, then gradually our thinking starts to account for the minds of others. But the degree of attention we give to that dimension varies widely, even when we become adults. So the secret ingredients for well-functioning teams seem to be equal participation, more women, as well as T.o.M., in the form of a broad consideration of the perceptions and feelings of others.

    Implications: Improve Your Trial Teams

    Exercise Your T.o.M.

    The first recommendation for building a better team, inside or outside of a trial setting, is to spend more time considering the roles and perceptions of others. Instead of a self-centered team focused on "What do we want and how do we get it?" you want an other-centered team focused on clients, stakeholders, and even adversaries. The more sensitized we are to the reality that our perceptions are not the only perceptions, the more effective we will be as a team.

    Use Mock Trial Research to Build Your Case's T.o.M.

    Experienced trial lawyers know that, from day one, they should be thinking about what a jury would think. Still, through the duration and detail of discovery, that perspective can be lost or watered down, and the litigator can find herself focused on what a jury should do based on the law and the facts, rather than on what they would do based on their own perceptions and psychology. A mock trial is a perfect vehicle for sharpening your case's theory of mind. Hearing from those average people provides a chance to step outside the legal fold and to build your understanding of what an eventual jury could or would do.

    And Just Add More Women

    Too bad the acronym is a male name, because the research seems clear: While there are definitely T.o.M.-boys, the T.o.M.-girls are more likely. Women are better at incorporating Theory of Mind into their perceptions and decisions. I don't want to essentialize, but the finding from both studies is hard to ignore: More women equals better teams. This is another reason why today -- 2015, folks -- it remains unacceptable to continue to see less representation of women on trial teams. So add women, not just when there are "women's issues" in the case and not just to appeal to women on the jury. Instead, add women to make for a more effective team.