By Dr. Ken Broda Bahm:
As the pack of Republican presidential contenders heads out of Iowa, there is an important lesson for litigators and other persuaders, but it is partly simple and partly complex. The simple part is that negative campaigning works. Just ask Newt Gingrich who was on the receiving end of more than four million dollars worth of attack ads run by Mitt-friendly PACs in the weeks leading up to Tuesday’s Iowa caucuses. Gringrich, who just weeks earlier had been ahead of Romney in the polls, settled for a fourth place finish while Romney managed to eke out a victory. As much as we like to believe that politics, like litigation, is all about presenting a positive vision, the reality is that negative appeals can be dramatically effective.
The complex part of the lesson is that the effectiveness of negative appeals can vary based on source, timing, and the overall balance of your message. A number of factors, particularly relevant in a litigation context, influence when a pointed attack on your adversary will work, and when it will bounce back at you, reducing your credibility more than your opponent’s.
Attacks Are Sticky
We’re all familiar with the format: a dark screen, ominous music, and unflattering pictures of a downcast candidate as a deep-voiced narrator relates shocking failures of judgment, character, and policy. When asked, the average member of the public will say that they don’t like the ads and are not influenced by the ads. Similarly, the average candidate will say that they want to run a positive campaign, focusing on their vision for the country. But the research and the reality of candidates’ use of negative ads tell a different story. “Gingrich’s drop in polls in Iowa last month was no accident,” writes University of Georgia Professor Ruthann Lariscy for CNN, “it was choreographed by negative advertising.” She goes on to discuss research showing that negative information receives more cognitive processing, and is more “sticky” and memorable than positive information. “Inevitably,” she writes, “some of the negative information gets ‘stuck’ in our minds, even if we don’t like the ad or agree with its contents.”
The greater memorability of negative information is borne out by the research. For example, a review of the literature on negative political campaigns (Lau, Sigelman & Rovner, 2007), found that the negative information “tends to be more memorable and stimulate knowledge” about an adversary, even as negative campaigning is not necessarily a reliable strategy for winning votes.
But for Litigators, They’re Also Tricky
That last conclusion from the research carries some importance for litigators: Attacks stick in the memory, but they don’t necessarily help the source win elections. The same goes for litigators, and attacks on your adversaries won’t necessarily win cases. Here are a few litigation-relevant lessons that we can take from what we are learning about political attacks.
1. Be Conscious of Outcomes. The Iowa caucus outcomes are telling: The attacks the Romney camp lobbed on Newt Gingrich seemed to work in knocking that candidate from first to fourth place, but the targets of those ads didn’t switch from Gingrich to Romney, they switched from Gingrich to previous underdog Rick Santorum. Romney stayed basically at the same 25 percent threshold and ended up winning by just eight votes. The law of unintended consequences applies in litigation as well. An effective attack will reduce your adversary’s credibility, but will also leave your jurors with a message, and you need to be aware of the effect of that message. For example, you convince your fact finders that the party on the other side was unethical. Good, but now you have reinforced the importance of ethics and can rightly expect some heavy scrutiny of your own ethics.
2. Be Conscious of Source Credibility. One other finding from the review of negative political advertising research (Lau, Sigelman & Rovner, 2007) is that many negative attacks reduce the credibility of both the target and the source of the attack. You’re still faulted for throwing stones even when the stone hits its target. In the context of political advertising, this is less of a problem due to a “sleeper effect,” when come voting time we remember the content of the attack but forget where we learned it. Blowback is also less of a problem in politics due to the fact that today’s attacks are often made by shadowy groups with names like “Restore Our Future” which don’t appear to be linked to any candidate until you dig. Litigators, on the other hand, don’t have the luxury of hiding the source. I’ve known some trial teams to effectively take a good cop/bad cop approach, where one attorney stays positive — bonding with the jury and delivering opening and closing — while the other attorney plays the role of attack dog, occasionally let off the leash to savage a key opposing witness or two.
3. Be Conscious of Timing. We have written before about the need to tell a positive story first, and only then focus on the problems with the other side. Effective candidates tend to do the same thing. Early on in the campaign, they attempt to build their image and their hope-fueled positive message. Only later, when push comes to shove, do they subtly shift gears and start running the ominous fear-driven ads. In litigation, we see that in every mock trial that we run. We make a practice of measuring mock juror leaning and credibility after each phase of the mock trial. In a project conducted yesterday, for example, we found that once the Plaintiff was done, every single mock juror reported a leaning in favor of that party, and the Defendants’ credibility was tiny. If the Defendants in that context were to stand up and start throwing punches immediately, the message would have fallen flat. The jurors would have simply counter-argued against even valid attacks in order to maintain their opinions. Instead, the Defendants had to quietly build some trust, then tell their story, and only then, invite the jurors to scrutinize the Plaintiff a little more closely. In actual trial, that often means saving some of your negative attention for the end of opening, or for testimony and closing.
In the political world, the reality is that negative attacks are here to stay. The same is true in litigation. As much as we communication types often emphasize the need to give your audience something to vote for, not against, it remains true that discovery usually yields some negative information on your adversaries, and you need to get that information in front of your fact finders. Just as in politics, though, it is a matter of timing and tone.
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Richard R. Lau, Lee Sigelman, Ivy Brown Rovner (2007). The Effects of Negative Political Campaigns: A Meta-Analytic Reassessment Journal of Politics, 69 (4), 1176-1209 : 10.1111/j.1468-2508.2007.00618.x
Photo Credit: Mike Licht, NotionsCapital, Flickr Created Commons (edited).