IT’S NOT WHAT YOU SAY, BUT HOW YOU SAY IT THAT COUNTS

I assume many of you have noted the significance of words used by the politicians in describing the impeachment proceedings that has continuously been in the news. My friend, Rhode Island attorney Mark Mandell has written and lectured on the subject of the importance of words we use or “framing” in communicating with people about issues. How we describe something has great significance on the impression and reaction of our listeners. This is a very important principle in trial communications.

Recently the New York Times wrote an article about the vocabulary used by House Democrats regarding the impeachment issue that illustrates this point. From the beginning, the choice of “quid pro quo” to describe the claimed unlawful acts of President Trump and his dealings with the leader of Ukraine has been confusing in its apparent significance. How many Americans had ever even heard the term before the news media began continuously using the phrase in their reporting? Even lawyers,who would have an understanding of the term, would likely find that description less than dramatic or shocking. After all, “this for that” is hardly a well-known description of obvious wrongdoing.

Apparently, after days of continuous use of the innocuous Latin phrase, House Democrats recognized this truth. They have now decided to substitute “extortion and bribery” to replace the phrase. Responding to Republican claims that there was no wrongdoing because Mr. Trump eventually released most of the military aid, Speaker Nancy Pelosi referred to the action as “extortion.” She said:

“The fact is, the aid was only released after the whistle-blower exposed the truth of presidents extortion and bribery,” she wrote in a letter to her Democratic colleagues,.

Clearly, these words are totally more sinister then to argue “there was a quid pro quo.” The newspaper article reports that focus groups were conducted by House Democrats and they revealed that the obscure Latin phrase wasn’t communicating any serious wrongdoing to voters. As a result they are trying to change their language and the framing of the issue.

The other issue has been the description of what is going on and why it’s going on. To start with there has been a failure on the part of the Democrats to accurately describe what they say happened. The reports of the events have described a demand by Mr. Trump to the president of Ukraine to launch an investigation of his political rival Joe Biden and his son in exchange for the release of military aid that Congress had approved as well as to arrange a visit to the White House. In fact, the evidence is not that the demand was for an actual investigation, but rather that the president simply publicly announce that such an investigation would be launched with no obligation to actually do it. It was the publicity about it that was the goal and not an actual investigation. Furthermore, the impeachment process itself has been confused in the reporting. The process actually involves first an inquiry, then the decision to file articles of impeachment to remove him from office if justified, and then the hearing or trial itself to decide if it should be done. Yet, the entire series of events has been loosely described as “impeachment.” The focus group studies and other investigation by Democrats revealed that voters were much more comfortable with the word “inquiry” then with “impeachment” or “removal.” Framing counts.

The investigation also revealed that phrases like” for political gain,” “abuse of power” and “no one is above the law” and real significance for voters. Democratic leaders have urged their colleagues to “keep the language simple, direct and value-based.” Not only is that accurate advice for politicians, it is excellent advice for trial lawyers as well.

The recommendation was that phrases like “abused his power and put himself above the law” when talking about Mr. Trump should be used. It was also suggested that Democrats should should describe Republicans who oppose the inquiry as “failing to fulfill their oath of office.” The goal is to “emphasize the core value that no one is above the law.” These phrases communicate a clear meaning of wrongful conduct. After weeks of media attention to the issue Democrats have finally realized that they should abandon the Latin quid pro quo for words that mean something to people.

We are in a profession that calls for clear and understandable communication in the persuasion of our causes. Understanding the power and significance of framing is an essential part of this process. We must remember it’s not what we say but how we say it that counts.






About Paul Luvera

Plaintiff trial lawyer for 50 years. Past President of the Inner Circle of Advocates & Washington State Trial Lawyers Association. Member American Board of Trial Advocates, American College of Trial Lawyers, International Academy, International Society of Barristers, member of the National Trial Lawyers Hall of Fame & speaker at Spence Trial College
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