By Dr. Ken Broda Bahm:
Ducks and Vikings have been prominent recently on the free expression front of the culture wars. The ‘Duck’ would be Duck Dynasty’s reality star Phil Robertson, who’s recent comments on homosexuality and race caused his network, A & E, to briefly suspend him from the show. The ‘Viking’ would be former Minnesota Vikings punter Chris Kluwe, who was released by the team after controversy following an editorial he wrote in favor of marriage equality. While Kluwe lost his job and Robertson kept his, the similarity in the cases is that both were framed in the public sphere as a question of free expression. But it is less the question of whether Robertson and Kluwe have free speech, but whether they have freedom from the employment consequences of that speech.
Lawyers, unlike the general public perhaps, are likely to clarify, “No, they don’t.” Neither is a First Amendment case because it is a private entity and not the government who is arguably restricting expression. Private companies, the lawyer would explain, are generally able to terminate if an employee’s publicly expressed views reflect poorly on that company’s brand and mission. So while those with various viewpoints can criticize the Minnesota Vikings or the A & E network for their values, they cannot say that either is restricting any legal right to free expression. Both Kluwe and Robertson have the freedom to say what they want. What they don’t have is the freedom to say it without commercial consequences. That frame can be useful in a number of legal scenarios. Argue that parties have freedom, but not freedom from consequences, and fact finders may be more comfortable holding them responsible. This post applies that frame to a few different litigation situations.
Litigation Is a Frame Game
We have written before about frames, and the reason for that is that they are essential tools of persuasion. These particular contexts and settings that you fit around the facts and characters in your trial story can dramatically change evaluations. Is that contract being viewed through a moral or a pragmatic framework? Is the employment relationship seen through a master/servant or a teacher/student lens? Can the construction project be fit into a metaphor of continual progress or barely-contained chaos? If you succeed in establishing the helpful framework, then you are at least halfway to your persuasive goal.
Virtually every feature of your trial message can help to encourage a particular frame: your word choice, the narrative structure, where you begin and end, who you place in the lead role, or the analogies you use. Social scientists like Jonathan Haidt argue that there are a finite set of moral triggers that when embedded into your stories can evoke a set of predictable responses.
One moral trigger is the notion of liberty versus oppression, tapping into a basic desire to be free from interference. That also resonates with scientific support for the effectiveness of the “but you are free” appeal in persuasion: Reminding your persuasive targets that they are free to come to their own decision is a demonstrably effective way to increase your persuasive effectiveness. In addition to telling your audience that they’re free to decide, it more broadly helps to place this frame of freedom around those actors who you want to be most closely evaluated in your trial story.
Choosing the Frame, “Freedom with Consequences”
When we think of the parties and other actors in litigation stories, they can be viewed through a framework of “constraints,” as actors who “must” or “must not” take certain actions. Alternately, they can be viewed through a framework of “freedom with consequences,” as actors who exercise their will while also facing the consequences of their choices. And choosing the latter frame isn’t just a matter of thinking logically about actors’ degree of choice, it is a matter of bringing that liberty to the fore, making it salient and tangible.
Here are a few situations where an attorney’s language might fall into one or the other frame. In each of these settings, the “freedom with consequences” frame is likely to lead to a greater willingness to evaluate those actors and hold them responsible.
A White-Collar Prosecution
Framed as Constraints: When you have inside information, you simply cannot make investments based on it. You can’t tell your friends about it, and you can’t make your own investments to benefit from that information. It’s not allowed.
Framed as Freedom with Consequences: Choices have consequences. When an informed investor chooses to use insider information, they are choosing a short-term profit, choosing to put the rest of the market at a disadvantage, and they are choosing the risk of a lengthy prison sentence. That is what the defendant is facing: the consequences of his choice.
A Patent Plaintiff
Framed as Constraints: The defendant’s product cannot have these features. They cannot include an unbroken seam, they cannot include a defined attachment area, and they cannot include an adjacent tensioning element. That’s not allowed based on the patent.
Framed as Freedom with Consequences: The patent puts the market, including the defendant, on notice. So they know the consequences. If they want these features – an unbroken seam, defined attachment, and adjacent tensioning – then they have some choices. One, they can pay a reasonable license fee like other companies. Or two, they can face an infringement lawsuit with the risk of losing their profits. They have chosen two.
A Breach of Contract Plaintiff
Framed as Constraints: The contract is a bond, a promise, a requirement on the parties. You sign it, and you have to follow it. You can’t simply break a contract when it becomes convenient.
Framed as Freedom with Consequences: The best laid plans go astray. And when they went astray for the defendant, they had some options — not necessarily good options, but options still. They could ask for a renegotiation, or they could just ignore their obligations and face a lawsuit. We are here because they chose the latter.
An Environmental Damage Defendant
Framed as Constraint: The plaintiffs in this case had a duty to mitigate their own damages. They cannot simply enjoy the royalty benefits of oil production on their land while doing nothing to preserve the economic value of that land once drilling is done. They cannot claim damages that they could have prevented.
Framed as Freedom with Consequences: At this point, the plaintiffs are not facing the consequences of the oil company’s actions as much as they are facing the consequences of their own choices. They were the ones who decided to do nothing to retain the value of their last post-production, so they are the the ones who are choosing diminished value.
In each case the better framing is captured in the adage from criminal law. It isn’t just “don’t do the crime,” it is “don’t do the crime, if you can’t do the time.”
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Other Posts on Framing:
- Pick the Right Frame
- Find the “Universal Morality” in Your Case Story
- Convert Your Conspiracy Theorists: Research Shows it Can Be Done
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Photo Credit: The Unnamed, Flickr Creative Commons