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Oct 04 2012

A Trial Lawyer’s Perspective on the Presidential Debate

As an ardent supporter of President Obama I watched the first 2012 Presidential Debate last night with high anticipation. I was sadly disappointed to see a candidate who seemed to not realize 40 Million people were watching. As I saw Mitt Romney give the performance of his life (and that’s what it was – a performance, as I discuss below) I saw President that looked half-asleep and unwilling to respond to his opponents misstatements and weaknesses. And then I realized what the difference was between the two last night. President Obama behaved like a law professor and Governor Romney behaved like a trial lawyer! Since I hold both of these titles, I saw characteristics of these two different sides of the legal profession in these two Harvard Law grads(neither of whom actually ever practiced law).

Trial lawyers are required to break down complicated legal issues and present them in the best fashion to a jury of average Americans. Law professors are tasked to discuss and instruct on heady legal issues to an audience that is prepared to listen to such discussion and has in fact paid a lot of money for the privilege to do so. So which of these two is more like winning over the American public in a two hour debate?

Romney deployed some classic trial lawyer maneuvers in getting his message across. Appear conversational; don’t condescend; use numbered lists; have a theme; keep coming back to your three or four strongest points; look at the person you are accusing directly when accusing them; and if the facts don’t help you, generalize and fudge as much as you can get away with.

Obama made some errors that any trial lawyer could have helped him with. (1) Your opponent has given you a gift, a major gaffe (in this case the “47% video” that caused Romney to slide dramatically in the polls). His explanations for the statement were almost worse than the statement itself. So go for the kill, finish off the wounded gazelle like a rabid hyena. Yet Obama made no mention of it and never once asked Romney to explain it again to the American Public. (2) Pay attention to what is being said during the trial (debate). Obama should have jumped on Romney’s admission that his tax plan will not provide tax relief to the middle class because while he is lowering rates, he is also eliminating deductions and his other admission that he wants to kill Big Bird. That’s the kind of statement that the president should have used to show that Romney is not revealing all of the draconian cuts he intends to use to continue the Bush tax cuts for the upper class.(3) In the corollary to what I said about Romney, when you are being challenged on something look directly at the challenger,let the jury know you are not afraid to look him in the eye and stare him down. Shake your head “No” vigorously to let them know you disagree with what he is saying, blurt out “That’s not true!” when he stretches the truth. But don’t, don’t, don’t just hang your head and look down at your notes and make no response. (4) Just like I like to open my cross examinations with a strong sharp question, when you are given the opportunity to respond to your opponent, look him the eye and challenge him right at the start. (5)As trial lawyers we often have to sit there while the other side either makes statements to the court or presents evidence that looks favorable at first. The best thing to do is start off with your strongest point against what they just said or presented. If you can establish that they lied or exaggerated about one or two key points, the entire speech or testimony will be ignored. The pundits on the left are already writing articles about how Romney only won because he lied about this fact or that plan. Maybe, but it was the President’s job to call him on it. I am reminded of one of my favorite quotes from one of my favorite Presidents Teddy Roosevelt:

It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.

Obama was in the arena – it was for him to call out Romney and challenge the inaccuracies, inconsistencies and vagueness of his proposals. To do so now or worse to wait for the HuffPo or MSNBC to do it for you is like talking to the jury after they ruled against you. No point in trying to convince them now. (6) Have control – when you have a weak and ineffectual judge (or moderator as the nearly comatose Jim Lehrer was last night) you have two options, (a) stifle your opponent yourself when he goes over his time limit or doesn’t answer the question directly or (b) do like he does and talk about what you want when you want. I got so frustrated last night seeing the way the moderator had no control and how Romney took advantage of that. But the blame for that should go mostly to the moderator and the rest to Obama. Good litigators take as much room as the judge and their adversary let them. Obama should have put Mitt in his place himself if the moderator was not going to do or demand (or take) equal time.

So there are two more debates left. One on foreign policy and one in a Town Hall fashion. I hope the President brings on a few litigators to his debate prep team who can sharpen his delivery and get help him get his message across. Otherwise, he’s going to hear the American people render a verdict that will not make him happy.

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