Breaking the Idols: Demystifying Fetishism in High-Stakes Litigation
By Scott R. Herndon, PhD, JD
In high-stakes lawsuits, wrongful death claims confront Gold Standard corporations. #MeToo allegations challenge the moguls of Silicon Valley and Hollywood. Whether we are hired by trial teams from other firms to consult them on their own strategies, or we build the cases ourselves, these are the cases The Law Office of Scott R. Herndon takes pride in handling.
In these high-profile cases, there is a primary obstacle to justice that is often overlooked, but this is described directly by lawyers. This is the underappreciated and serious dynamic of the fetish.
When we say someone is a “fetishist,” there is often the sense that that person is a sexual deviant. But as I will show in this article, the roots and dynamics of the fetish are everywhere we look, and even fundamental to how human beings view our world. If we understand the mechanics of the fetish, we can also understand something important about how vast power imbalances, disparities in value, and unequal social outcomes have come to define our modern life.
At my firm, we don’t just practice the law. We use philosophy, psychology, and social theory to inform our strategic approach to cases. We believe that to win against an “untouchable” defendant, a lawyer must not simply be a master of the law. A great lawyer must also anticipate the traps that bind everyone in our culture, including judges and juries: Our admiration, our trust, and our silence. One of these traps is the fetish.
Once we understand just what the fetish is, and how it functions, we will be ready to apply this concept to our unique approach to the practice of law.
What is a Fetish?
The concept of the fetish originates with the Portuguese word feitiço, used by early colonial traders to describe West African objects (such as charms or carvings) that were believed to be objects of superstition. It was thought that indigenous peoples had attributed a “magical” agency to these fetish objects. In the 20th century, William Pietz thereby called the fetish a “binding site.” What Pietz meant is that the fetish is a singular physical point where different social systems, desires, and values are compressed and locked together. Pietz likened its “magical” qualities to that of an implicit contract. Once two strangers have attributed the same sacred or financial value to the wood, the wood can then be exchanged, treated, and interpreted with a new value. For Pietz, the fetish object functions to secure trust and a shared value between groups of people who otherwise had no common ground.
In very simple terms, the fetish can be understood as an ordinary object that is artificially endowed with a power that the object (say, a wooden carving) does not possess naturally, in its materials alone. Once the fetish is attributed to the wood, these charms are no longer simply pieces of wood. They have value.
It is not an accident that the words, “feitiço,” fetish, and fiction sound so similar. The fetish can also be understood as a fiction—some value that human beings attribute to an object in order for the object to play a new role in our society. There may be nothing in the materiality of object at all that explains its new fictional value.
And yet, this artificial or fully social process of value addition is often taken for granted. As the anthropologist Michael Taussig wrote, all cultures tend to think of their fetish objects as given, elemental or even necessary. Over time, we may even come to believe our fetishes are unchangeable. This belief may be human nature, but it is false.
Fetishes Are Everywhere
We can find the dynamic of the fetish everywhere in our culture. A dollar bill is just a green piece of paper. Its worth is not in the paper, but in the fiction we all give it. Once we all agree that the fiction works, the fetish is complete. The piece of paper is not worthless—it is now worth one dollar.
A Luis Vuitton bag is worth many times more than the cost of its leather, or the cost of the labor that went into making it. We will pay vast sums of money for ordinary products that are imbued with social status. A bottle of water with a clever brand name can sell for many times the price of a bottle of water drawn from a water hose—even if the quality of the water is actually better from the hose. And the list goes on and on.
This dynamic suggests that our use of fetishes may be fundamental to the modern world, or even the human experience as such. Equally fundamental may be our desire to suppress the knowledge that our fetishes and their values are arbitrary in their first instance, potentially harmful in their accumulation and distribution, and always open to critique.
The problem with fetishes is not that we fetishize things, corporations, and even other people—empowering them with social and economic status in the process. The problem is that we often do not realize we are doing this at all.
This unconscious acceptance of our values can result in our unwitting acceptance of serious imbalances of wealth, power, and prestige. We can live our lives without realizing that these power imbalances exist, why they took shape in the first place, or how we could ever change them.
Commodity Fetishes and Social Value
How does fetishism work in our own economy? To answer this question, we must understand the narrower concept of the commodity fetish. As defined by Marx, a commodity fetish is a social relation between men themselves which assumes “the fantastic form of a relation between things.” In general terms, the fetish of goods functions to hide the work of men and women who made the product in the first place. All we see is the price.
In this regard (and departing from Marx), the product, logo, or brand can no longer be understood just as a thing, any more than the wooden charm functions merely as a piece of wood. The product is a social symbol endowed with mystical qualities. For modern philosophers like Baudrillard and Debord, the product has become something new. For these thinkers, the product, brand, and logo are only worth the value that our social codes give them. The fetish of the product does not hide the labor that went into making it, it hides the greater, all-encompassing social code that gives value to the product in the first place.
In a wrongful death case, this mystical value can act as the corporation’s shield. Our culture teaches us to look at a Gold Standard airline as a guarantor of safety, or a premier tech firm as an idol of engineering mastery and altruism.
It is undeniable that our culture encourages citizens to admire the Model, and often even when their lived experience tells us the Model may have failed them. Even further, our culture often fetishizes corporations and their figureheads by fostering the assumption that their power, scale, profit and prestige are themselves proof of what they have actually done, and what they in fact deserve.
But when the evidence shows these corporations have not earned the excess value our culture has granted them, the effective lawyer must tear the fetish apart. It must break the spell.
The Sacred Trap: Implicit Trust in Elite Defendants
Of course, The Law Office of Scott R. Herndon is a plaintiff’s law firm first, and philosophical thinktank second. Let’s now discuss how our law firm conceptualizes the fetish in the practice of law.
As a boutique personal injury law firm, The Law Office of Scott R. Herndon handles catastrophic personal injury cases, including wrongful death lawsuits involving “gold standard” corporations. We also represent high-profile cases involving survivors of sexual assault and sexual harassment in Hollywood production studios and technology companies in Silicon Valley. We consult with law firms in high-stakes cases to improve their strategies and sharpen the way they marshal the facts.
In this practice, we have often encountered what we define as The Sacred Trap of fetishism.
The Sacred Trap occurs when our culture “fetishizes” corporations and elite individuals by unthinkingly attributing to them values they do not deserve. The trap bears its teeth when our culture disregards initial reports and evidence that these corporations or moguls have harmed innocent people. Our culture is initially trapped into acting as if the company is Sacred, and as if the “genius” behind the technology company must be shielded from scrutiny to do his important work. The company is supposed to be the “gold standard” of safety. The Hollywood auteur is an eccentric visionary. Our culture—including juries—often unknowingly wants to give these companies and their leaders the benefit of the doubt.
This is the Sacred Trap: Our culture’s implicit trust in the symbolic value of the company (the logo, the safety award, the five-star rating) or the genius, visionary, or auteur. The raw truth is that this implicit trust is often unearned and undeserved.
The effective plaintiff’s law firm must fight to break the grasp of the Sacred Trap, and show not only that a harm was done to their clients, but how the Sacred fetish has devolved into a harmful fiction. This is a difficult but important battle, and not simply because our corporations and oligarchs deploy unimaginable amounts of money and time crafting and cleansing their public image.
But the battle can be won. As the common phrase goes, the bigger they are, the harder they fall. Almost everyone agrees in their hearts that just because a company may be a “household name,” we cannot turn a blind eye to their failures to provide safe products, humane conditions, or honest accounts of their actions. Just because a tech founder or a Hollywood director is seen as a “visionary,” this does not mean we must give them a free pass when they harm innocent people.
The effective lawyer must attack our cultural tendency to treat elite defendants as if they possess an almost sacred status, or are beyond reproach.
The Identity Trap: Fetishism, Sexual Assault and the Battle of #MeToo
A second important fetish occurs in #MeToo litigation, especially in Hollywood and Silicon Valley, where the Law Office of Scott R. Herndon primarily works. We have termed this the Identity Trap.
In the fetish of the Identity Trap, corporations and figureheads are often imbued with the status of “master signifiers”—a term used by the psychoanalyst Jacques Lacan to describe a symbol which provides an imagined meaning, coherence and identity for entire communities.
Americans love the idealized image of the “genius” director, the “visionary” tech founder, or the reliable corporation. We imagine that these figureheads radiate with a “fullness of being” that we want to secure for ourselves, but suspect we never could on our own. Our best practical hope we is somehow to become part of their tightly knit culture, rise through their ranks, purchase their products, and associate ourselves with what we think are their values.
The same is often true for tech employees who devote their entire lives to the success of the companies they support. It is also true for survivors of sexual assault in Hollywood and Silicon Valley, especially when these young men and women first enter these worlds. Talented, attractive and impressionable, they implicitly know that the price of entry is often to buy into the “vision” or “company culture” to climb the ranks and develop a successful career—even if this culture turns out to be deeply problematic and even harmful in reality.
The Identity Trap takes shape when employees begins to associate their own identities with the success of the fetishized company or figurehead. When the survivor of sexual harassment stands up for herself and reports her injuries to HR, or files a lawsuit, her own identity (as part of the company, or as a visionary herself) is often crushed in the process.
Even further, when a survivor speaks out against such a figurehead or corporation, they are not just attacking a person. Internally, the company or studio may frame her as attacking the identity of everyone in the company who fetishizes the figurehead, the production studio itself, or the tech company’s culture as a whole. This dynamic is explained in what Freud called disavowal: a mental state where the company “knows very well” the conduct likely occurred, but “all the same,” refuses to believe it because it does not want to destroy or even acknowledge the fetish that supports their own sense of worth.
The Simulation Trap: Safety Branding and The Baudrillardian Shield
The third fetish leads to a dynamic we call The Simulation Trap. Modern corporations often hide behind what the philosopher Jean Baudrillard (awkwardly) called the “simulacrum”—an artificial and “perfected” system of images that works to obscure and replace the reality of what the corporation actually is.
In simple language, one might think of the simulacrum as a carefully crafted fantasy meant to cloak and ornament a reality that does not match the fantasy.
A lawyer who has read Baudrillard can easily explain how a company has sold the image of its safety culture through polished Safety Branding and Safety Awards (often by industry-sponsored groups), even when the reality of that company’s safety culture was hollow, failing, dangerous, and disguised.
In the courtroom, the defense often implicitly argues that because the “signs” of a Safety Brand exist (in company manuals and certifications and polished conference papers), the company could not have been reckless or negligent. They want the jury to accept and defend the fetish of their branding and reputation more than the evidence that may explain the roots of the tragedy.
Effective lawyers work to expose such defense strategies. They fight to unmask the fetish. It takes careful, rigorous work to short-circuit the fantasy of Safety Branding. First, they work to shatter the fetish and force the jury to confront the material facts of the harm. Then they focus on the betrayal—a company’s decision to bury the truth.
The Work of the Lawyer is to Reclaim Symbolic Agency
Justice is only possible when we recognize how fetishes operate, and pay attention to the fundamental human dynamics that drive any major case. Whether it is a wrongful death case or a #MeToo claim, the goal of the Law Office of Scott R. Herndon is to win our cases with philosophical insight, rigorous attention to detail, and a focus on the importance of every life we represent.
If you are facing a defendant who seems “untouchable”, call us.
