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The Advantage Blog

  • Tsongas Litigation Consulting


Updated: Jul 14, 2023

The presidential political season is upon us! Yay? While one part of me would like to take an extended vacation where there are no TV’s so I can skip the entire thing, another part of me is looking forward to the debates, speeches, and the inevitable gaffes (although I do feel a little badly that I’m looking forward to those).

Political campaigns offer a plethora of teachings about effective and ineffective trial communication. Campaign slogans, candidate responses, and the overall messaging provide valuable insights into the need for 1) a simple, persuasive, and motivating case theory – similar to a campaign’s slogan, 2) clear, focused, “head-line” answers to complex questions – similar to candidate’s debate and interview responses, and 3) a consistent, coherent, and persuasive case framework that guides every decision about opening, closing, evidence and testimony to be included – similar to a campaign’s overall messaging.

Take a look at those who have already thrown their hat in the ring and you’ll see that the messaging is consistent and value-based. Hillary Clinton’s website’s messaging is about the future (“New Adventures. Next Chapters.”) and “you” (“This starts with you.”). Her new “H” logo has even spawned a new typeface: Hillary Bold or Hillvetica. Marco Rubio is also appealing to the future with the question, “Are you ready for a new American century?” His logo plays on the American theme with the image of the U.S. replacing the dot above the “i” in Rubio. Rand Paul is taking a slightly different approach: his website slogan, “Stand with Rand. Defeat the Washington Machine, Unleash the American Dream,” is made complete with a logo of a flame. In a similar vein, Ted Cruz promises to “Reignite the Promise of America,” and his red, white, and blue flame logo completes the message. As you watch these campaigns, see if they stay true to the message. See how the overall framework crumbles when they get pulled into defensive battles on issues that are not part of their core messaging.

Just like political campaigns, trials go off the rails when the messaging becomes fragmented, off-topic, too granular, and – in many cases – defensive. An important guiding question of any trial strategy should be, “How does this [testimony, exhibit, language, etc.] relate to and advance our core theory, or relate to our case framework?” It’s the “bunny trails,” or the inability to make the tough decisions about what to leave out of your case that can pull you away from your core message, thus confusing jurors and inviting attacks from your opponent.

Politicians are (usually) very good at deflecting or re-framing questions they don’t want to answer. They are good at incorporating their themes into each answer. Marco Rubio did this quite well in his interview with Matt Lauer on the Today Show following his presidential bid announcement. Each answer was focused and consistent with his overall message. His answers were simple, memorable, theme-based “head-lines”; he didn’t delve into the weeds and he never took the interviewer’s bait (e.g., when talking about his relationship with Jeb Bush).

Yes, often you can get pulled into addressing an issue you’d rather not (i.e., Hillary will clearly be answering more questions about why she used her private email account when she was Secretary of State). However, rarely is there an issue that you did not already realize was a worry pre-trial. Your trial strategy should address how to re-frame those issues so that you can still advance your core themes in a non-defensive manner.

As you watch the election unfold over the next 570 days (!), if you need another reason to pay attention, don’t listen to the pundits tell you who will win, simply watch for how effectively the campaign is able to stay on message and deflect and re-frame when necessary. In trial, have an objective party, perhaps a Jury Consultant, do the same thing for you, providing you valuable feedback that allows you to adjust as necessary (before it’s too late).

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