A few weeks ago, presidential primary candidate Joe Biden seemed to be on his way to a quick exit from the race. He didn’t have the crowds, didn’t have the stand-out debate performances, and most importantly, didn’t have even a top-three finish in the early primaries and caucuses. But then came a strong performance in North Carolina and then a dominant performance on both Super Tuesdays. As of this writing, he has all but cleared the field and wrapped up the Democratic nomination. Where Biden had been seen as low in voter enthusiasm, especially in contrast to Bernie Sanders’ wildly motivated movement, it now turns out that Biden is winning in very high turnout contests and actually driving the turnout himself.

So, what changed? What changed is that Joe’s plan actually worked: Win in South Carolina, and parley that into a decisive boost in the Super Tuesday primaries. The temporary perception of being a winner took away his biggest obstacle overnight. For litigators, I think the lesson is that optics really matter: Nothing makes you lose like the perception that you’re losing, and conversely, nothing makes you win like the perception that you are winning. So, at all stages of the trial process, it’s important to look like you’re winning. But there are also a few other lessons that students of public persuasion can take from Joe Biden’s sudden resurgence. In a recent piece in Vox, Ezra Klein, former editor and columnist at the Washington Post, looks into “What the media missed about Joe Biden’s electability.” In this post, I’ll look at three interesting lessons from the article.

Lesson One: Disfluency Is Not a Huge Liability

Ezra Klein notes that media commentators tend to prize clear communication and that’s a trait of legal professionals as well. If we assume that what is important to us is going to be important to others as well, that can cause us — when evaluating a witness, a party, or a lawyer — to overvalue the importance of communication fluency.

Joe Biden’s meandering style and frequent verbal mistakes were seen as a big liability. “Biden has lost a step rhetorically,” Klein writes, “In debates, his answers have, to put it gently, a meandering quality. He loses his place, says the wrong thing, mixes up words, free associates.” However, ultimately this seemed to have mattered a lot more to the critics than to the voters. Speaking of communication mistakes and garbled words, Trump’s list of Covfefe’s grows daily, and that matters to his opponents and to humorists, but not a whit to his supporters.

Lesson Two: People Are Not as Extreme as You Think

It is easy to believe in rigid polarization these days, and the appearance that our civil life involves each side shouting at the other from opposite ends of the political spectrum. In thinking about the views of a community or a potential jury, we might carry these assumptions over and think that fact finders might be similarly extreme and similarly divided.

But the public is likely not as extreme as you think. In the election, for example, the true ideological candidate, Bernie Sanders, is stumbling. And according to Klein’s review of history, that tends to be the rule rather than the exception. Those who are most politically engaged are not terribly representative of the country, and Biden’s success might indicate that the majority is a lot more moderate and centrist, and simply less interested in political division than it would seem.

Lesson Three: It’s Not Just What You’re For, It Is What You Are Against

In litigation, we like to think in terms of the “positive case” or the issues that relate to what is good, right, and just about your position. This is as opposed to the “negative case” focusing on the opposite traits in your opponent. Both are important, but communication types like me tend to emphasize the positive case as being the one that is key to your credibility.

But I think the Democratic primary so far reminds us that there are situations where the negative case will be the one with greater salience. In the course of the campaign, the primary candidates probably over-emphasized the positive case, with Bernie Sanders, for example, emphasizing that the election is not just about winning against Trump, it is about transforming the country. The answer so far from Democratic primary voters has been, “No, it is really about defeating Trump.” Discussing Joe Biden’s pitch to voters who (until last week at least) have been happy with the economy, Klein notes, “Biden’s pitch to them, basically, is that he’ll remove Trump from office but not do anything drastic to alter economic trends. That may be a better strategy than much of the left believes.” It always helps to ask, “What motivates?” and in this case, it seems to be the negative side of that argument that is more motivating.

Whenever reality corrects what has been conventional wisdom, as it did in Joe Biden’s recent recovery, it helps to pay attention. So, the next time you think about your own legal persuasion needs, remember “Joe-mentum” — a little disfluency may not matter, you don’t necessarily have to persuade the extremes, and it could help to emphasize what you’re against and not just what you’re for.

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Image credit: Donkey Hotey, Flickr Creative Commons, edited by author