"Get your facts first, and then you can distort them as much as you please." (Mark Twain)

Tuesday, September 28, 2004

Debating de Hook 

I'm not a clever guy
But I'm sure not that dumb
Don't have the inside news
But I know what goes on
And if you put your faith in God above
Or if you watch the skies for Superman
There's always times when you can see the answers
Slip right through their hands
So how do you know
That the man in the street don't care
And why don't you care
When the man in the street don't know, anyway

Joe Jackson, "Man In the Street"

As Maxine Hong Kingston said, "I learned to make my mind large, as the universe is large, so that there is room for paradoxes." And so it occurs to me that John Kerry can mop the floor with the Boy King in the debates that begin this week, if only he can remember two essential facts:
(1) The voters are idiots.

(2) The voters aren't idiots.

There, that's simple, isn't it? Well, maybe not. Let me explain.

I recently mentioned Jim McElhaney, trial lawyer extraordinaire and author of McElhaney's Trial Notebook, the best book I've ever read about how to speak to a jury. If the Kerry team doesn't already have a dog-eared copy of McElhaney's book, I would suggest that it is not too late to get one, and to read it. Hell, I'll lend 'em mine.

McElhaney's lessons are simple: Jurors (and I submit, by analogy, voters) are simply human beings, with all of the prejudices, decency, myopia, wisdom, ignorance, and life experiences that any human being might have. Whatever your case may be about, the jury is inexpert in that subject. It is the trial lawyer's duty to educate the jury. Where many lawyers fall flat, however, is in confusing the jury's ignorance with stupidity. And so, in the process of trying to educate the jury, lawyers often succeed only in being condescending and superior. The result of this error is often disaster.

What the successful trial attorney must do is show the jury - in such a way as to let each juror think that he or she discovered the fact him or herself - that the wisdom gained in everyday life leads directly to the desired conclusion. And the way to do this is to use simple, powerful methods of storytelling, visual imagery, and appeals to an inate sense of justice to show (not tell!) the jurors that, deep down, they knew all along which side is right.

Kerry, of course, was a prosecutor. Now, I'll set aside my defense attorney bias and forget for a moment that many prosecutors are not particularly skilled at trial advocacy (how hard is it to repeat "...and what happened next, officer?"). The fact is, successful prosecutors excel - particularly in their summations, which in some ways most closely approximate the stilted format of these "debates" - at humanizing a case and making the jurors feel the power of their argument. I expect that Kerry will do just that, and do it well.

In this context, another paradox suggests itself - Kerry appears to be the very picture of wealth and privilege, while the Naked Emperor so deftly affects the common touch. But in fact, Kerry has a more genuine feel for the hopes and fears of middle class Americans than Shrub could ever begin to understand. Here is where the conventional wisdom falls apart - several pundits have predicted that the rule prohibiting direct questioning of one's opponent in these debates works against Kerry, but in fact, it works in his favor. Chimpy is the one who wants to make this election be about Kerry and his record (because, after all, if it is about Bush and his record, Bush loses). He needs to set the agenda, and put Kerry on the defensive. Directly or indirectly, he needs to interrogate his opponent. Kerry, on the other hand, needs to question the voters: Do you believe this war is going well? Do you believe you are safer than you were four years ago? Is your job secure? Are your savings growing, or shrinking? You ask the President the questions that need to be asked - and then ask whether your questions have been answered.

Another thing - I assume that whoever set the debate schedule is a Kerry campaign mole, because he couldn't have asked for more. On Thursday, the candidates are to address foreign policy and homeland security. These are widely perceived as being Bush's strong suits, although of course they are nothing of the sort. Kerry will do well, and his good performance will be seen as a surprise. Then, after the October 8 debate with no set agenda, he gets to finish up on October 13 with a debate limited to domestic issues (read: the economy). And this is Bush's biggest weakness (expect Kerry to focus on jobs, social security, jobs, and - if there's time - jobs). And that's the last word before the election itself.

Speaking of last words, I will close with some from McElhaney. He tells the story of a mock trial, in which the plaintiff was represented by the legendary James W. Jeans. The trial was over except for final arguments. Jeans was characteristically brilliant; he "wove a magic spell for the plaintiff - a motorcyclist - that you could virtually touch and feel." His argument included a powerful analogy: He mentioned an episode of Wild Kingdom he had seen in which the formalized conflict rituals of the arctic walrus was displayed. Jeans suggested that the defendant in his case (a landowner who had assaulted the motorcyclist for some real or imagined trespass, and left him paralyzed) did not even meet the standards of civilized conduct observed by a bull walrus. McElhaney continues:
There was magic in the air, and the hundred lawyers [in the audience] knew it.

So did Mike Schmidt, who had to stand up for the defendant and answer Jeans' argument.

Schmidt thanked the court and without saying a word to the jury walked from his table over to the blackboard. He turned his back to the jury and the plaintiff's table and bent over, seeming to do some calculations in very small writing at the bottom of the board.

It certainly violated everyone's notion of what Schmidt ought to be doing - ingratiating himself with the jury, trying to beat back the spell that was still gripping everyone in the room. But if Schmidt knew that, he gave no sign. He was concentrating on a few tiny marks he was making at the bottom of the blackboard - his backside toward the plaintiff's table and the jury. He did not say a word for the longest time, and everyone started to think that for once Schmidt was stumped and did not know what to do. He stayed that way for more than a minute and a half.

Still bent over, he turned his head to the right and gave Jeans a sidelong glance. In a stage whisper that sounded like a school kid at the blackboard in La Mesa, Texas, asking a classmate for the right answer, he asked Jeans, "Whut kind of walrus you say that was?"

"Bull," said Jeans.

Schmidt straightened up and wrote the word as he spoke, in giant letters across the top of the board: "That's right, BULL. Now let's talk about the EVIDENCE in this case."

He had broken the spell.




Fantastic opening statement, counselor. I hope Kerry does just as well in his closing.

Mu. President . . . BULL!
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