The Double Bind of Accountability: Breaking Traps 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. These are the cases my law firm takes pride in handling—and winning.
In these cases, the primary obstacle to justice is rarely a lack of evidence. Instead, it is a psychological and structural architecture known as the double bind.
High profile defendants are protected by powerful legal teams. But these people and companies are more fundamentally shielded by a complex web of social dynamics or “double binds” that effectively paralyze survivors, witnesses, and juries alike. Our unique law firm is built on a core understanding:
To win against an untouchable opponent, a lawyer must be a master of the psychological traps that govern our admiration, our shame, and our silence in the face of powerful moguls and corporations.
To dismantle these traps, it may be helpful to explain the intellectual foundation that makes such mastery possible in the courtroom, in mediations, and in the process of discovery.
What is the Double Bind?
The double bind can be understood as a state of paralysis. In basic psychological and philosophical terms, this is a “no-win” situation where a person receives two or more conflicting commands, with one command essentially negating the other. The double bind takes the form:
The first command reads: Do X!
But at the very same time (or shortly thereafter), it says: Don’t Do X!
This leaves the subject of the double bind stuck in a trap.
For the sociologist Rene Girard, one all-too-common double bind takes shape in the following way:
A person in power commands: Imitate Me! Desire what I desire!
But then, the powerful person commands: Don’t be my rival and my threat! You will be punished for this!
This leaves the subject consumed by fear, shame, and divided obligations.
In high-stakes litigation, the trap of the double bind can be devastating across many levels, beginning with the plaintiff, who has suffered the first bite of the dynamic. But it extends to judges and juries as well. This is because the double bind is rooted in the way all people look to others to define their own values and thrive—a process known as mimetic desire, or, in plain language, the human drive to imitate.
How Does the Double Bind Work in High-Stakes Litigation?
Double binds in high-stakes lawsuits often follow a specific structure:
The Command to Trust: People are told to admire and imitate the Model (the safe airline company, the visionary tech founder, or the Hollywood director).
The Command to Stay Silent: But when the Model causes a person harm, the system implicitly tells them that challenging the Model is an act of betrayal and they will be punished.
The Double Bind: The injured subject is caught in a bind where seeking justice is effectively a kind of sacrilege against the very people and companies they respected, admired, and perhaps even loved. Seeking justice not only means the destruction of their image, but also the fear that the survivor’s own image will be destroyed in the process. After all, the survivor’s identity is often supported and forged by the reputation of the person or company who hurt them. This is what René Girard terms the stumbling block.
At the Law Office of Scott R. Herndon, we specialize in helping clients recognize and break this bind, unmasking the reputations of figureheads and corporations, and focusing juries on the core facts of the injuries and harms suffered by our clients. Even more fundamentally, we work with experts, including board-certified psychotherapists, to help our clients understand and work through the complexities of their experience. We help our clients understand the depth of courage it takes to bring their cases to light.
Let’s now consider a few of the double binds we have identified in our legal practice.
The Identity Bind
The Identity Bind derives from the fact that so many aspiring tech workers, actors, and employees define themselves through the genius of others, the mentorship of their successful CEOs and supervisors. Young men and women are trained to do everything they can to conform to the “company culture,” where the only apparent path to success requires working intimately with such influential people. In industries like Hollywood and Silicon Valley, figureheads are treated as if they possess an almost magical “fullness of being” that the rest of us lack. Employees are sometimes implicitly required to overlook character flaws in these people due to their incredible vision and success in a world of scarce opportunity.
For a psychoanalyst like Jacques Lacan, all people desire and emulate what they think they lack, and specifically, what they think will make them whole. In simple terms, the celebrated film director or a tech genius (the Model) becomes what Lacan called a “Master Signifier”—an illusory role where people come to believe that the Model will give meaning to their lives, and secure it. The same may be true for residents of a city which serves as the headquarters of a bellwether company. The company supports and holds the entire town together. The potential loss of the bellwether company’s reputation does not simply present an economic disaster, it can present an Identity crisis to the entire town as well. The town may lash out at the whistleblower who calls out safety flaws in the company, or attack the reputation of the #MeToo survivor. Protecting the reputation of the company may seem more urgent than recognizing the harms that the company caused.
In other words, when a survivor or an injured employee speaks out and names their harm, they are not just punished for attacking the Model or the company. They are often framed as attacking the identity of everyone who works in that industry or company as well. This leads to what Freud called disavowal, a dynamic where the community knows very well the injurious conduct may have occurred, but all the same, community leaders refuse to believe it because they do not want to jeopardize the idealized image of the corporation or its figureheads.
At The Law Office of Scott R. Herndon, we dismantle this Bind by shifting the jury’s focus away from the defendant’s idealized image, and squarely on the human reality of the harm the defendant caused.
More often than not, this legal work begins by showing how banal, or ordinary, or cowardly, or hypocritical, the “genius” or “corporation” actually was. Their harms are not the product of genius, or unrivalled safety. They harm people because the Models are ordinary people, just like us. They cut corners. They are selfish. They are driven by greed.
But this is just the communal aspect of our work. More fundamentally, we must work to support the dignity of our clients, who are often also caught in the Identity Bind themselves.
Undermining the Model has real consequences for the survivor who once believed and gave their careers to that figurehead. At the very moment we show how banal, negligent, or reckless the Model was, the survivor’s own sense of pride can be called into question: How could I have formed my identity by this person, this startup, or this company? What is my identity, now that I see the truth for what it was?
The Shame Bind
This complex client dynamic is what we call the Shame Bind. When a violation occurs within an elite circle, the survivor often feels a sense of guilt. This dynamic was described by psychologists Nicolas Abraham and Maria Torok in their masterworks, The Shell and the Kernel and The Wolf Man’s Magic Word. For Abraham and Torok, when a trauma is too catastrophic to be spoken about openly, it is often “buried alive” in a mental vault or crypt within the survivor’s ego. The survivor buries the secret of her harm within herself in order to continue living, and to preserve her identity. To address the secret is to jeopardize her sense of self. There is shame both in keeping the secret, on the one hand, and shame in bringing the secret to the light of day, on the other.
In tight-knit professional circles, this shame is reinforced by the unspoken secrets throughout the cultures of tech companies, or Hollywood studios—hidden traumas passed along quietly through an organization’s history. It is the “open secret” that everyone on the film set or in the startup knows, but no one is allowed to mention.
The #MeToo survivor faces real shame for speaking the open secret. Similarly, the whistleblower can feel the same debilitating shame, too, knowing that the disclosure of the company’s secrets may bring the entire company down.
This leads to most difficult decision of all: How do I weigh my shame against the fact that I have been harmed, and that others may be harmed as a result of my silence? Is it better to air these secrets for the future of others like me, and even the company or the industry as a whole?
Only the best law firms address these fundamental issues before they leap into litigation. This is the kind of work we do at The Law Office of Scott R. Herndon.
Resolving the Crisis of the Double Bind
When we successfully challenge a “sacred” corporate model or a “genius” defendant, we trigger what Girard once called a sacrificial crisis. The jury and the public may feel a sense of fear as the idol is unmasked. Our firm addresses these issues by focusing the case on the law itself, and the human beings who have broken the law, and the human beings who have suffered as a result. Juries can hold the elite accountable. This will not destroy our order. Rather, this work can restore it.
If you are facing an opponent who seems “untouchable” because of their undeserved reputation, their brilliance, or their fame and fortune, call The Law Office of Scott R. Herndon.
