By Dr. Ken Broda Bahm:
The point is easy to grasp but hard to put into practice for both politicians and litigators: If something is likely to come out eventually, then you’re far better off skipping the chase, avoiding the drama, and just getting it out. And a close corollary of the principle is this: If it isn’t coming out, but its absence is likely to prove more troublesome than its presence, then again, get it out and avoid magnifying an issue and giving more power to a weakness. Republican presidential nominee Mitt Romney is facing exactly this challenge right now. Having released just one full year of his tax returns, the candidate is facing increasingly persistent questions about his finances, as well as his role in Bain Capital at a time when the company is associated with outsourcing American jobs overseas.
For Romney’s part, he has repeatedly taken a stand against releasing more than the 2010 and, when available, 2011 returns, telling CNN, “That’s all that’s necessary for people to understand something about my finances.” His wife, Ann Romney, has said the same, even more pointedly, telling ABC News, “We’ve given all you people need to know” about the family’s finances. But the issue is continuing to gain traction. A new Pew Research Center poll finds that while most Americans believe they know enough about both candidates, a solid chunk of independent voters — 37 percent — want to know more about the candidate’s finances and his disputed role in Bain Capital. The campaign is clearly calculating that a relatively modest hit over nondisclosure is likely to be worth it in avoiding the greater evil of fishing expeditions through decades of tax returns. Still, as pressures mount, calculations like that have a way of changing. Litigators realize that as well. When the information finally comes out during a peak of interest, they wish they would have just gotten it out earlier when it would have been just one fact out of many. Drawing once again from the world of politics, this post takes a look at several phases in litigation and trial where early disclosure can be far better than late admission.
The Problems With Nondisclosure.
From a communications perspective, the problems with keeping information out of sight are obvious, but still often ignored. First, the secrecy adds to the story, shining more attention than the event would have received otherwise. If, for example, Mitt Romney were to have publicly shared the 22 tax returns he gave to the 2008 McCain campaign when he was being vetted for the veep slot, then it is easy to imagine the reaction being fairly minor, e.g., “Okay, we get it, he is really rich and he uses every available tax loophole.” That is not really a news story. But with continued nondisclosure, then that becomes the story. It’s not about complicated tax returns (which most Americans won’t understand), but about excuses, secrecy and arrogance (which most Americans do understand).
Other than magnified attention, the second problem with nondisclosure is that speculation readily fills in the gap. We are narrative animals and we don’t do well with a story that is incomplete. We don’t cope well with an absence of information. Instead, we guess about what the information might be, and a “speculation spiral” soon grows out of the void. As we’ve previously written about the case of New York City Police shooting victim Amadou Diallo, the story was driven in large part by a failure of the department to provide information in response to questions from the public (Egan, 2011).
Prevent Nondisclosure From Creating a Greater Issue at Several Phases
Moving back to the realm of litigation, there are several points at which even experienced litigators can be tempted to hold back instead of getting the bad stuff out early.
1. Discovery. With the the nature of discovery continuing to expand, the chances of unintentional withholding are already large and getting larger. In that context, don’t risk adding to your burden through intentional withholding. The scenario often goes like this: In the trial war room, lead counsel suddenly unearths a document, gives a baleful look and asks an associate, “Did we disclose this?” When the sheepish admission comes back that it wasn’t disclosed, the right response is always the same, “Then lets prepare to disclose it in the morning…and lets talk about the hit we might take on it.” It is best to take discovery requests literally, to err on the side of disclosure, and to act quickly and preemptively whenever a mistake is discovered.
2. Opening Statement. It can be tempting to tell an exclusively positive story in opening, focusing on everything your client did right, for example, and not the one or two mistakes that opposing counsel will be harping on for a large chunk of their presentation. Lawyers sometimes avoid these negatives because it feels better to be telling the stronger story, and because they believe that it is the other side’s job, not their job, to focus on weaknesses. While the other side can usually be counted on to cover it, the problems in not addressing it yourself are: 1) you surrender the ability to frame it in your own terms, and 2) you lose credibility when jurors are surprised about what you didn’t tell them. Identify the worst things that jurors will learn about your client and cover them clearly in opening statement — not at the end (since the “recency effect” just gives that more importance) and not at the beginning (since the “primacy effect” does the same to what comes first), but somewhere in the middle.
3. Witness Testimony. When creating an outline for direct examination of your witness, it often helps to start by thinking of cross: What points will the other side try to score with this witness? Now, how can you structure direct so that you are covering those points earlier and better than the other side? Instead of saving preemption for the end of the outline (e.g., “Now, for the final few minutes, lets talk about the problems.”),cover it early and integrate it. That often means incorporating several moments of “mock cross,” where the questioner assumes a little bit of the same tone and asks questions in close to the same manner expected from opposing counsel. Covering the bad stuff through this method of “stealing thunder” is known to make for a more effective argument while adding credibility to your side at the same time (e.g., Arpan & Roskos-Ewoldsen, 2005).
Getting back to Mitt Romney, it is clear enough that in the current political climate, the endurance of the tax return issue is driven not only by legitimate questions, but also by political opportunism and an incumbant looking for any wrestling hold in a weak economy. It may well be that even with the temporary hit in the polls, it is the right tactical move to keep the tax returns from the public. It would be strategic to keep them secret if, for example, those returns showed that Romney earned quite a bit from Bain for the years that he has publicly claimed to have not been involved. Now, I’m speculating…but that proves my point.
The best speculation I’ve heard so far is from Andy Borowitz in The New Yorker suggesting that Mitt Romney’s dog ate his tax returns, and was also CEO of Bain Capital for three years.
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Other Posts on Dealing with Bad Facts:
- When It Comes to Your Greatest Case Weakness,Steer Into the Skid
- Don’t Be Defined By Bad Acts (Make Your Good ActsIntentional, and Your Good Intentions Actual)
- Don’t Wear The Black Hat Lightly: You’re Not the Bad Guy Because You’re at Fault, You’re at Fault Because You’re the Bad Guy.
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Arpan, L.M. & Roskos-Ewoldsen, D. R. (2005). Stealing Thunder: Analysis of the Effects of Proactive Disclosure of Crisis Information. Public Relations Review 31:3, 425-433.
Egan, A. B. (2011). The NYPD: The Nation’s Largest Police Department as a Study in Public Information Public Relations Journal, 5 (2)
Photo Credit: 401(k) 2012, Flickr Creative Commons