Trial lawyers know a thing or two about the art of persuasion. We make our living, after all, pitching stories to strangers. In that regard, we are much like politicians. But the similarity between jurors and voters is superficial. The 2016 presidential campaign proves it, and last night’s presidential debate illustrates why.
The early polling suggests that Hillary, a woman widely regarded as a liar and untrustworthy, prevailed.
Donald, in the meantime, claims victory, and asserts that even if he is not elected come November, it will be because the election was “rigged.”
We’ve an election pitting a woman with the existential appeal of an ironing board against a tempestuous teapot of a man who can’t speak in simple declarative sentences. Would you really trust either of them to advise you on an important decision?
Two folks almost no one seems to like are vying for the highest office in the land. Come November, or shortly thereafter, depending upon just how complicated things get, one of the two will be declared a winner.
Were this a trial, I doubt there would be a winner. That’s because few really seems to trust either candidate. One will be declared a winner because that is the way the process works: at the end of this grinding ordeal, one person must be elected. There must be a verdict, regardless of how poor the performance of the participants.
At trial, things are different. One party, either the plaintiff, in a civil matter, or the government, in a criminal case, wants something from the defendant. The party wanting something must persuade jurors to give it to them. They must persuade the jurors by relying on enough proof to tip the scales in their favor – either the preponderance of the evidence in a civil case, or proof beyond a reasonable doubt in a criminal case. If jurors aren’t persuaded, the case ends without a verdict – a mistrial.
There aren’t mistrials in elections, and the candidates know it. Thus, political argument has become forensically sterile, if not repulsive. Neither Hillary nor Donald demonstrate the basic honesty necessary to inspire trust. The debates don’t illuminate; they disgust. And the media plays along. Outsiders appeal because the insider’s game is going nowhere.
Consider the following rhetorical deploys:
The Pivot: We accept as a matter of course that candidates, and their surrogates — just what rock garden spawned this year’s crop? -- will seek to “pivot” when asked an uncomfortable question. What does that mean? Refusing to answer the question, instead redirecting the discussion to another topic. Candidates are evaluated on how successfully they can pivot, or avoid answering a question. We punish children for the behavior we reward in politicians.
Donald is a master at the pivot. When pressed about his tax returns, he counters with an attack on Hillary’s emails. It’s a dishonest version of the "tu quoque," or, you, too, argument. Did I not pay taxes? Why you hypocrite! You destroyed emails. How dare you call me dishonest, when you yourself are dishonest?
Jurors regarding this mudslinging might easily conclude that neither party is to be trusted, and might well tune out. That might benefit the defendant, who wants to avoid an adverse verdict at all costs. But it would be fatal to the party having the burden of proof – jurors must be motivated to side with one party rf the other. Liars don’t motivate; neither do hypocrites.
In a presidential race winning is everything. One would think that would require the parties to strive to appear trustworthy. Paradoxically, it doesn’t.
Red Herrings: These are assertions that mischaracterize or mislead.
A classic from last night’s debate? Donald’s claim that Hillary’s defense of partial birth abortion entails her willingness to rip a nine month old fetus from a mother’s womb to engage in infanticide.
Donald effectively wielded this brickbat against Hillary. She appeared so stunned by it that she did not know how to respond. Rather than deny it, she engaged in a species of the pathos, saying she wished that Donald had met some of the women she had met.
The exchange illuminated nothing, two ships passing in the night destined for ports unknown.
The wisdom of jurors penalizes lawyers who engage in these forms of misdirection. That we have come to expect it from politicians is ominous.
Ad Hominem Attacks: Every forensic contest, much like a presidential election, is a morality play. People want to decide between good and evil. That is a far easier thing to do than making difficult judgments about policies.
Trial lawyers seek to demonize the other side of the aisle to motivate jurors. It matters not whether opposing counsel, his client, or one of the adverse witnesses is painted in the blood-red hue of the devil. All that matters is that the paint sticks to the other side, and not to your side.
In a presidential race, character matters. Attacking the person, and not the principle, the ad hominem attack, is therefore a staple of political debate. Is Hillary a wicked woman? If jurors believe it, then Donald might win. However, few are prepared to follow Putin’s puppet.
Exaggeration: How is it in this post-Cold War world that we’ve managed to reincarnate the Red Scare? I’m listening to the rhetoric about Russia and hearing ancient echoes about Communism. Didn’t we win that war? Why are we letting the politicos draw from that fetid well?
Are the Russians hacking emails and trying to influence the elections? Probably. I’m not losing sleep over that. Nation-states always play fast and loose with the truth. We pumped enormous amounts of money into destabilizing and toppling unfriendly regimes in Central America. Recall the Iran-Contra deal? Or how about the US-sponsored coup in 1954 in Guatemala?
Shame on both candidates.
Neither Donald Trump nor Hillary Clinton make a persuasive case about why they should be president. Both are playing defensively, attacking their adversary as unfit. That’s a fine strategy if you’re playing for a mistrial. But in electoral politics, someone always wins.
The 2016 election is a loser’s paradise. When it is over, I suspect nothing much will change. The same old gridlock will descend on the capitol and little will get done. Neither candidate has a story about what can make move us forward. Donald offers an empty promise to make us great again; Hillary wants to include everyone in a future in which diversity is an end in itself.
Maybe next election we’ll get around to discussing issues. This year is a lost cause.
“No man is a hero to his valet,” an old proverb has it. I think of it often when making a difficult recommendation to a client. Folks want their lawyers to be heroes. Sometimes lawyers are able to fulfill that role; more often, especially in the context of criminal plea-bargaining, reality is far less heroic.
Consider the following cases:
A client is accused of murdering his best friend. The decedent was shot to death while sitting in the front seat of a parked car. Next to him in the passenger’s seat was a confederate, someone eager to learn the dark arts of drug dealing from the victim. The client, a convicted felon, was in the back seat of the car.
The dead man was shot once in the neck. The two men in the car with him fled.
A short time later, police learned the client was in the car. They question him. Despite his years of experience sparring with the law, he agrees to talk. He tells officers his friend was showing a gun to the man in the passenger seat. The client asked to handle the gun. As it was passed from the front seat to the back seat, the gun went off.
Not really. Murder is what the law calls a specific-intent crime. To be guilty of it, a person must have the conscious objective of causing death and then causing death. The confession, if believed, did not amount to murder; at most, he confessed to manslaughter, to behaving in a reckless manner with a gun and thereby causing death.
The state offered the man 18 years in prison if he were to plead to manslaughter. We were hired to try the case.
Preservation of the attorney-client privilege — the privacy of discussions between lawyers and their clients — prevents me from telling the whole story here. Suffice it to say that 18 years was more than our client could accept.
We told the judge we were ready to try the case.
The state budged in the end. On the eve of jury selection, we negotiated a plea bargain requiring the client to serve 11 years.
It is heartbreaking to recommend a plea to a client. It feels like betrayal. But what is worse than this form of betrayal is standing next to a client sentenced to 55 or 60 years in prison. No lawyer can guarantee a client a victory at trial. All we can offer is a fight. Practice law long enough, and you learn that the fight is all there is. Sometimes wisdom requires pragmatism.
Our client accepted the 11-year offer.
The following month, we were called to trial in another murder case in a different city: This case, too, involved drugs and guns — a scourge infecting cities nationwide.
The state did not believe our client shot and killed the victim. Rather, the state viewed the shooting as part of a drug deal gone bad. The client was charged with felony murder, a crime involving the death of a person in the course of committing another serious crime.
Efforts to resolve this case by way of a plea appeared futile. Co-defendants of the client’s had received long sentences after pleas or verdicts. He wanted no part of that, and insisted he was not involved with the murder.
The state wouldn’t budge.
A day or so before trial, the state offered the client a chance to plead to hindering prosecution, in this case by arranging to have his co-defendants driven away from the vicinity of the shooting by a third party. After extensive dickering, the state and judge agreed to a sentence of 10 years.
Once again, the sense of betrayal rushed to the surface. The client no doubt wanted a miracle; we offered a pragmatic compromise. He is no longer looking at the possibility of a 60-year sentence. Instead, he could be home soon, if he is granted parole.
In both cases, I was brought in to try the cases, and I relished the fights. Instead of month-long courtroom battles, the cases ended with whimpers. I could sense the clients’s disappointment, or, perhaps, I projected my own disappointment.
Criminal defense lawyers have a responsibility to get the best outcome they can for their clients. That means engaging in the distasteful work of plea-bargaining, even if the client doesn’t want a deal. In the criminal courts, the client decides whether to enter a plea or not; the lawyer’s job is to make options for the client to choose.
That can yield misunderstanding. Advising a client to accept a plea offer is a tightrope walk. There is a danger the client will question your loyalty to his cause. Why are you telling me to consider a plea? Don’t you believe in me? Some clients even suspect that a lawyer recommending a plea is working too closely with the government.
Lawyers are social oncologists. We treat folks struggling with an invasive tumor — in this case, the state. We seek a cure if one can be had, but, if it can’t, then we recommend ways to save as much of the client as we can. Sometimes that means accepting time behind bars, the functional equivalent of amputation. We’re not trained for such work. No internship prepares a lawyer for the delivery of life-altering options.
We are trained to expect clients to be rational. We must bargain in the law’s shadow, as it is sometimes put. Whoever believes that is a mere academic, untrained in the toe-to-toe combat of client counseling. The real shadows in a criminal case are more often cast by a client’s demons; those demons often come from a place perilously close to mental illness.
Clients reject lawyers’ advice all the time. “You can lead a client to the courthouse, but you can’t make them think,” many a lawyer has muttered.
“No man is a hero to his valet.” Okay. I get that.
But I think the German philosopher Georg Wilhelm Friedrich Hegel completed the aphorism aptly: “This is not because the hero is not a hero, but because the valet is a valet.”