By: Dr. Ken Broda Bahm –
U.S. District Court Judge G. Thomas Porteous, in his recent Senate trial, was called “something of a moocher.” Earlier this year, former Illinois Governor Rod Blagojevich was called “foolish,” and “not the sharpest knife in the drawer.” With comments like these coming from their own lawyers, it is enough to make you wonder, “who needs opposing counsel?” The expectation that a party gets unambiguous support from its attorney can be challenged by the reality that any jury or other finder of fact is bound to see something negative, or in the cases of Porteous or Blagojevic something very negative, in your case.
For the corporate defendant, for example, is it better to admit to “greed” if that is a way to reduce the likelihood of “fraud”? For the plaintiff, might it sometimes work to embrace “laziness” if that is a way of undercutting a finding of “contributory negligence”?
A recent post focusing on the importance of framing your arguments in positive terms brought up the issue of whether the positive frame is always the correct one to use based on the facts. This post will look at a different scenario: When it is clear fact-finders are bound to aim some sort of negative label in your direction, then creating and embracing your own label can sometimes work to absorb the ire, send it in a direction that minimizes liability, and increase your own credibility in the process.
There are two ways that your own embrace of an otherwise negative label could improve your case.
The first, I would call “diversion.” It might be helpful to think about juror anger metaphorically as a kind of energy — it can be changed in form, but it cannot be fully destroyed. After hearing the narrative of the case and the allegations, the jury may have reached the conclusion that something is very wrong with your client’s actions or roles. But prior to hearing legal instructions at least, they may not have any place to “put” those feelings, so to speak. Giving the fact-finder a safer way to label those actions (e.g., “My client was secretive…but not dishonest”) can help to divert the fact-finders away from a more negative conclusion.
The second and perhaps more important way that the negative label can aid persuasion is through the creation of “common ground.” One very important perspective on persuasion is that it always involves the creation of some kind of common ground between the persuader and an audience. The late Kenneth Burke, who led a mid-century reinvention of American studies of rhetoric, argued that the key word in any attempt to influence is “identification.” There must be some point at which a speaker and an audience find a point of shared language, shared experience, or shared values. Most commonly, we see this strategy play out when the campaigning politician hops onto the stage in some rural venue, dons a John Deere hat and says, “I am a farmer too!” While such attempts can come off as heavy-handed or insincere, we know that we tend to place greater trust in those who share some level of similarity with us. For the lawyer facing an often unknown jury panel may have a greater challenge, but no less of a need. When you know that the fact-finders will be critical of your client, owning up to some level of “irresponsibility” for example on your client’s part can be a way of saying, “well, we agree on one thing.”
There are three general steps to take if you are considering an embrace of some kind of negative label.
1. Assess the degree of criticism. After working on a case, you may have a pretty good idea that you won’t escape unscathed, but it is still a good idea to look at how big or small that problem might be by conducting a community attitude survey or focus group or mock trial research.
2. Assess the malleability of the criticism. Negative attitudes toward your clients might be fixed, or fuzzy, or somewhere in between. If the conclusions are likely to be so clear that jurors wouldn’t be able to divert them in some direction other than liability, then instead of trying to relabel, you should probably be adopting a strategy based on apology.
3. Carefully test an alternative label. You will often find that the mock jurors themselves will suggest a variety of ways to view your client: “stupid,” “not paying attention,” “self-interested,” etc. – they can be disconcertingly direct at times. Your goal is to see which, if any, of the naturally occurring labels might help jurors view the case in a light that is less harsh.
Obviously, any of those alternatives will carry some strong negative baggage for your client, and for that reason, attorneys can be understandably reluctant to embrace them. The New Orleans Federal Judge, G. Thomas Porteous, was in fact convicted at the end of last week, based on charges that he received cash from lawyers who had cases before him. So, there will definitely be times when the facts are clear enough that a relabel (“It isn’t ‘high crimes and misdemeanors’…it is ‘mooching'”) will not be enough. But in the limited circumstance that a healthy dose of criticism seems inevitable, and a less damning alternative is available, then it is a question of “picking your poison,” and choosing one that is less likely to be fatal can be a good idea.
Photo Credit: Mykl Roventine, on Flickr Creative Commons