LESSONS FOR TRIAL LAWYERS FROM THE PRESIDENTIAL DEBATE

There is a great deal which can and has been said about the presidential debate of September 29, 2020. For my political view of the debate see https://www.paulluverajournalonline.com/weblog/. However, there are also lessons for trial lawyers from the debate as well.

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For example, former VP Joe Biden exhibited verbal habits which are annoying. Some people have a habit of beginning an answer with “so…” Biden had a similar bad habit of repeatedly beginning sentences with the phrase “So, here’s the deal…” He also had a habit of framing his answers numerically as in “Number one” and “number two” etc. Trial lawyers should similarly be conscious of their speech habits which are annoying when repeatedly used. For example, some lawyers overuse “filler words.” These are words or phrases inserted between sentences that are unnecessary, annoying, and distracting. Instead of pausing between sentences meaningless words and phrases are inserted like “well” or “okay” or “you know” or “like” and “so.” Speech habits that should be changed also include phrases that the person repetitively uses in conversation like these “it is what it is” or “at the end of the day” and “am I right?”

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Another lesson from the debate involved the absence of silence. What was one of the primary facts that made the debate experience generally uncomfortable? It was the lack of any pauses in the talking. It was instead a continuous interrupting and without pauses, all done in a confrontational tone. The lack of pauses or silence made it uncomfortably stressful. We generally are uncomfortable with silence. When a pause occurs during a conversation, we generally want to fill the space. Law enforcement interrogators know this and practice asking a question or making a statement followed by silence. Interrogators know that people feel uncomfortable with the silence and want to fill up with talk. Silence can be a powerful communication technique. Pauses and silent moments in a speech, argument or conversation allow the listener to catch up mentally and adds emphasis to the speaker’s message. Both candidates in the debate were intent upon talking over the other person by talking louder and continuously over the other. The result was absence of communication and viewer irritation. Even though Trump was the instigator and a gross violator, both get tarred by the same brush in the eyes of the viewers. Think about that the next time you’re tempted to get into an interruption match with your opponent in court.

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Pretend for a moment that you were in the position of Joe Biden. Not as a political candidate but in a situation, you likely have been in during a motion argument or trial. Pretend the moderator is the judge who is ineffective in controlling the situation involving an obnoxious opponent like President Trump. Your opponent has the same intention of Trump which was to dominate, upset and throw the other person off track. For anyone who’s been in that situation you know that a response to fight back, interrupt the other person and become upset, always produces an angry judge and a jury who has a very bad impression of both counsels. Now, with the debate conduct of both candidates in mind, assume instead, your response had been to simply remain stoic face (no faces or shaking head) while quietly waiting with your hands grasped together waiting. Suppose you then waited until your interrupting opponent had finally stopped. Then you allow a pause of silence before speaking. If you then responded with a rational statement the impression you would make on judge and jury would be one of calm, confident leadership, not two lawyers fighting. Reacting that way emphasizes, through the patient waiting and pause, the bad conduct of your opponent. Gerry Spence once described that response to me as “watchful waiting.” By that he told me he  meant the projection of controlled power through patient and calm waiting. He explained that this conduct, when followed by a pause and an appropriate response, projected a person who was a calm leader in control. The frantic and excited attempt to respond by interruption projects just the opposite image. Joe Biden might well have followed Gerry’s advice.

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Another important nonverbal factor illustrated in the debate is the importance of tone of voice. This is particularly when we are in a situation like that at the debate involving accusation and interruption. When we are upset our voice normally reflects it. Power is implied by a calm voice in response. If our opponent is doing what Trump was doing at the debate, a controlled response in a calm tone of voice puts our opponent in an unfavorable light by comparison. Your tone of voice is just as important as the words you choose to use.

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Equally important to tone of voice is the speed with which we talk, particularly when we are in a challenging or upsetting situation. Timing is of extreme importance in creating an impression about us.

In a situation like that at the debate, where Trump is attacking with “machine gun” speed, the rate of our talk in response is important. Observe trial attorneys and others who are persuasive in their advocacy. It almost every case the timing of their speech has a great deal to do with the persuasion of their speech. Make a conscious effort to slow down, take a breath and concentrate in speaking out each word. Avoid the impression that you are in a hurry or a rush because that makes you sound nervous and unsure of yourself.

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Even more important than annoying habits of speech, is our body language. This is especially true when we have cameras focused on us as was the case in the debate. However, it is equally significant in the new world of Zoom and teleconferencing. The focusing of the camera by zeroing in on us in those situations fixes attention on how we look and act. We normally don’t think about how important body language is in a trial, but studies indicate that we are judged by the impression others have of us. In the debate the camera was fixed continuously both candidates. The nonverbal impression they communicated was as much due to their body language, conduct and manner of speech as the words they used.

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We know generally about nonverbal language in having an open stance, hands out of the pockets or not behind our backs and avoiding crossed arms. We are also generally aware that we should avoid awkward gestures, and annoying frequent body gestures or other body posture habits that we have. But reflect on the debate. What was the body posture, the facial expressions and where the eyes were looking when one candidate was speaking or attacking the other? During Trump’s prolonged interruptions attacking Biden, what was Biden’s body language? The answer to these questions is the unconscious impression that the viewer has of each of them. Generally, in a situation like this it is important to avoid facial and body posture demonstrating how you feel. Judges dislike it and jurors feel the same. Biden’s best reaction during a Trump rant would be to calmly look straight ahead, not at trump, with no expression of feeling, especially not anger.

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There is also the important question of what action should one take when involved in a situation like that at the debate? President Trump had an agenda of deliberately and continuously interrupting Biden. When the moderator offered no assistance and completely lost control of the situation, Biden responded defending himself and rejecting Trump’s claims as lies through mutual interruption. The result was a cacophony of words no one could understand. The obvious result was to upset viewers by the wasted time involved watching two national leaders acting like teenagers having an argument. The fact that Trump deliberately created situation and was a far greater offender than Biden doesn’t change the negative reaction to both of them. No matter who is at fault if you respond in kind you will be blamed too. This situation is one many of us have encountered in trial involving an unethical and obnoxious opponent. Sometimes it happens with a judge who is unable to maintain control and it is up to us to solve the problem on our own. Our response should have the mistakes made at the debate in mind.

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The first time Trump interrupted, which was almost immediately, was the moment to have taken appropriate action by Biden. Instead he decided to act with restraint and try to first endure Trump’s conduct. As a result, Trump was encouraged to keep it up. The time to confront unethical and obnoxious conduct by an opponent is when it first occurs. What responses might Biden have made? The first is what we previously talked about: body language, timing, tone of voice and choice of action. Biden, after waiting for Trump to wind down, might have ignored Trump and addressed the moderator, Wallace, instead. He could have pointed out calmly to Wallace that there had been a promise of both he and Trump to not interrupt the other. He might have asked Wallace to remind Trump of this fact. Or, he could have addressed Trump after a pause and with a calm level voice, reminding Trump he had agreed he would not interrupt, but it was obvious that his word was not reliable. He could have pointed out he already had broken the promise just like he had in other affairs as president. It doesn’t make any difference what the response of either the moderator or Trump might have been. What is important is that the breach of promise is exposed and highlighted. That would also allow Biden to continue to use a reminder mocking phrase for additional breaches throughout the rest of the debate. During the Reagan Mondale debate Reagan claimed Mondale was misstating facts early in the debate. Each time thereafter Mondale made a claimed false representation, Reagan would say “there you go again” which caused audience members to laugh when he did it. By the way, well phrased mocking of Trump conduct is also an effective way to combat it.

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Biden might also have responded to Trump’s interruptions by ignoring the claims Trump was making and focusing upon Trump’s violation of the agreement. He might have highlighted the apparent fear Trump had of what Biden was saying or made other telling comments about Trump’s conduct. Instead Biden chose to try to respond to the interruptions by contradicting Trump’s claims which was totally ineffective. That’s because the conflict between the two made it impossible to understand what the likely truth was. Biden would have been better off to have generally focused his responses on Trump’s conduct rather than Trump’s claims or ridiculed Trumps fear of a fair debate. A comparison between a calm leader like Biden to an excitable fast-talking person intent on interrupting the other speaker would have created a favorable impression for Biden and a negative one for Trump.

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These are only a few of the lessons to be learned from the debate. We should monitor commentary and discussions about it for more helpful lessons.

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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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