A price war between McDonald’s and A & W fast food restaurants has a lesson for trial lawyers about the importance of describing trial issues or “framing.”  A&W was the first-ever chain restaurant  in America. By the 1970s, A&W  had more locations open than McDonald’s. It was  founded in 1919 in Kentucky and is the oldest chain restaurant in America

In 1948 Maurice and Richard McDonald opened the first self-serve McDonald’s in San Bernardino, California. Six years later Ray Kroc, a milk shakes machine salesman, convinced the brothers to let him become their franchising agent. In 1961 Kroc paid $ 2.7 million for the brothers’ share of McDonald’s System, Inc. To raise money for expansion, Kroc took the company public in 1965. At the time of Kroc’s death in 1984, the company had 7,500 restaurants in 32 countries.

In the 1980s, then-owner of A&W  Alfred Taubman decided to go head-to-head with McDonald’s “Quarter Pounder” hamburger with its own numerically named hamburger – “the Third Pound Burger.” It  launched a  campaign to promote A&W’ s new burgers to compete with the immensely popular McDonald’s Quarter Pounder through its bigger one third pound burger at the same price as McDonald’s one quarter pound hamburger. An extensive television and radio marketing campaign cited their larger burger over McDonald’s for the same price. In spite of extensive TV and radio advertising the marketing failed. Taubuman recounted this in his book, Threshold Resistance. “We were aggressively marketing a one-third-pound hamburger for the same price…but despite our best efforts, including first-rate TV and radio promotional spots, they just weren’t selling.”

A&W’ s burgers weren’t able to compete even though the burgers were priced the same as their competitors,. The A&W Third Pounder never sold like the company thought it would even though they advertised it heavily on TV and radio. So, they hired a market research firm to try to figure out why the burger was failing. The firm conducted a focus group to discover the truth: participants were concerned about the price of the burger. “Why should we pay the same amount for a third of a pound of meat as we do for a quarter pound of meat?” they asked. It turns out the majority of participants incorrectly believed one-third of a pound was actually smaller than a quarter of a pound. 

A&W knew that they couldn’t solve the problem by teaching the public how to understand fractions. So, they changed the name of the “Third Pounder” to “The Papa Burger.” This still remains their signature burger to this day, even though the franchise has changed hands several times over the years.

Despite the confusion, Taubman took an important lesson from the experience: “Sometimes the messages we send to our customers through marketing and sales information are not as clear and compelling as we think they are.” 

The description of the product determined its success or failure. Select the wrong description and millions in TV and radio promotion won’t change the public perception of the product. The same is true of our trial issue descriptions. How we describe or frame the issue is a primary cause of its perception by the jury. Case framing is a powerful influence in our trial work.