I have long believed that persuaders of all stripes, including courtroom persuaders, can learn a lot of lessons from political communication. The dialogue over the leadership and direction of the country can be a gold mine: It’s national, it provides a wealth of examples good and bad, and — particularly recently — it is ever-changing. In one of the biggest recent twists, President Joe Biden agreed to step down from his reelection effort and pass the torch to his Vice President, Kamala Harris. That sudden shift just a few Sundays ago created a critical opportunity for Harris to define, or to redefine, who she is to the American people. Toiling in the relative obscurity of the secondary role, she had mostly absorbed Joe Biden’s polling numbers — for better, or more recently, for worse. With the switch, however, a wave of enthusiasm from some and curiosity from others bought Harris a fresh look. Her first big decision, the selection of Minnesota Governor Tim Walz as her running mate, sharpens that attention.
Her challenge is to use this moment of novelty and rebooted attention in order to reestablish some credibility. That imperative to define oneself parallels the challenges of credibility generally. In legal cases, advocates routinely face audiences who know little about them beyond perhaps some baseline impressions or stereotypes. The need is to say, This is who I am, this is who I represent, and this is what I aim to tell you in a way that is believable and compelling. In this post, I’ll draw from the current example of the challenge faced by Kamala Harris, as well as her new running mate, to generalize to some lessons for legal persuaders.
1. Perceptions Are Thin Until the Attention is Significant
As the HBO show “Veep” has mercilessly pointed out, the American Vice President is probably the most powerful office where the officeholder still needs to scrap for small bits of attention and relevance. The fact that Harris had, up until this point, been consigned to absorbing Joe Biden’s relatively low public approval rates (based on a post-pandemic malaise with high inflation) means she starts with an uphill battle, despite running against a historically polarizing former President, Donald Trump. The large number who until recently were dissatisfied with both options are now paying attention. The situation has some comparison to what happens in a trial: Jurors might arrive with some preconceptions — for example, views about “plaintiffs” or about “big corporations” — but those perceptions can be thin, without a great deal of thought or commitment behind them. Particularly during the heightened attention given in a trial’s early phases, these are preconceptions that can change.
2. Justify the Fresh Look
Prior to Biden bowing out, the Trump campaign may have been guilty of 1) assuming that Biden would never back out, or 2) assuming that it wouldn’t matter if he did because Harris wasn’t polling much differently. What changed on July 21st, however, wasn’t just the presumptive name at the top of Democratic ticket, but also the motivation of the party’s base and the undecided voters. Harris has benefitted, at least temporarily, from a surge of attention. Of course, that attention can be positive or negative depending on what you do with it. But so far at least, the message has been that the election is now on different footing, and that has justified some fresh appraisals and better polling for Harris. A witness in trial can face a parallel need to dig out of a prior bad assessment, and factfinders might reasonably be wondering, “Why should we take another look?” In your own planned testimony, and in your own demeanor and substance, give them an answer.
3. Associations Matter
It is true in every context that you’re going to be judged by the company you keep. The Trump campaign strategy so far seems to reflect this tack, in wanting to paint Harris with the same brush it most recently used on Biden. She will predictably hear the same attacks — inflation, immigration, and crime — and it won’t matter whether and to what degree Kamala Harris participated in any of the relevant policies because the point is association more than causal blame. In litigation, associations are also a key part of credibility: The company will be personified by the person sitting at counsel table and by the company witnesses who take the stand. The character of a plaintiff will be enmeshed with jurors’ view of the character of their lawyer and their experts.
4. Everything Is Now
Past positions matter as much as if they were uttered today. No one is perfectly consistent — our views and statements change over time. That variability is normal, human, and understandable…until it is put under the microscope by someone who wants to make a point over your “waffling.” Kamala Harris, despite a GOP focus on inexperience and a lack of merit, actually has a long history in high profile elected office. As the Attorney General in the most populous state, a U.S. Senator, and now as Vice President, her positions on a variety of issues are a matter of record, with some pointing to an “evolution” of views involving criminal prosecution, law enforcement, recreational drugs, Israel and other issues. The campaign expects it will all need to be defended. The same goes for a witness. One of the first imperatives for a trial witness is to be consistent with what you said in deposition, or justify the difference. For the expert witness, that consistency imperative is even broader, since adversaries won’t be just looking at this case, but at all the cases.
5. It Doesn’t Pay to Take the Bait
There are certainly reasonable substantive policy attacks coming toward Harris. But there are also some lower attacks emerging, including several surrogates calling Kamala Harris “a DEI hire” because of her race and ethnicity, and Trump himself falsely claiming that Harris had previously identified only with her mother’s Indian ethnicity and only recently “happened to turn Black” for political purposes, and that she also “has a very low IQ.” These attacks, predictably echoed by Trump’s supporters, reframe the conversation in a pretty bad way. Low attacks are dangerous because they often elicit a low response. Michelle Obama’s maxim can seem a little Pollyannish these days, but it is still a good principle. “When they go low, we go high” is effective guidance for the witness as well: Stick to the facts and stick to what is most relevant, don’t be baited by express or implied personal attacks.
Already in the last one hundred days before the election, much can still change. It is certainly high stakes, but for communication junkies like me, it will also be fascinating to see how the players navigate this constantly changing field.
Image credit: Shutterstock, used under license
