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.
Who won?
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.