by: Dr. Ken Broda-Bahm
Here is a litigation lesson from the world of politics. The Vice President, along with many other Americans, described it as ‘incredibly insensitive, outrageous, and astounding,’ but last Thursday, in the U.S. House of Representatives, Texas Congressman Joe Barton was facing BP CEO:
“I’m ashamed of what happened in the White House yesterday. I think it is a tragedy of the first proportion that a private corporation can be subjected to what I would characterize as a shakedown — in this case a $20 billion shakedown. … I’m not speaking for anybody else, but I apologize.”
Hours later, Representative Barton was taking back that statement in order to deal with the ensuing uproar from both Democratic and Republican circles.
“I apologize for using the term ‘shakedown’ with regard to yesterday's actions at the White House in my opening statement this morning, and I retract my apology to BP.”
What we see here is an unsuccessful attempt by Rep. Barton to reframe the issues. On the 59th day of the continuing Deep Horizon oil spill, and two days after President Obama’s oval office speech asking BP to set up a $20 billion dollar fund in order to deal with the consequences of the oil spill, the Congressman seemed to sense a chance to focus the public’s attention on something other than the flowing oil, suffering wildlife, and spoiled beaches. The President’s demand was unprecedented, and on the heels of an unpopular health care reform law and in the run up to a climate bill being successfully framed as an “energy tax,” the public might have seemed primed to accept Barton’s characterization of the fund request as yet another example of an outrageous power grab by the Democratic President.
So why did Barton’s gambit fail so badly? Simply because the party that would have benefitted from this re-framing, BP, is so profoundly unsympathetic in the public eye, and that made Representative Barton look like a friend of the devil. This failed reframing exercise carries some important reminders for litigators.
To “frame” an issue simply means to invite an audience to see events in a particular context, with all the symbols and expectations that tend to accompany that context. It is a way to encourage your listeners, jurors or judges in our case, to metaphorically view the conflict using a certain set of glasses. Civil litigators, particularly but not exclusively corporate Defense attorneys, will frequently attempt to reframe the issue: The trial story isn’t about negligence, it is about out of control lawsuits, plaintiff greed, or a failure to exercise personal responsibility. The dualing narratives told in court are often battles over which frame a jury or judge will ultimately apply.
It is always a good idea to ask yourself what frame you would like the decision-makers to use, and a strategy to shift that frame can often work. But not when the perceived ‘devil’ would benefit from that reframing. We know that jurors, judges, and other humans follow logical and persuasive appeals, yet they are also prone to consequential reasoning: If the consequences of accepting an argument are off-putting, then no matter how elegant and sound an argument might otherwise be, it is not likely to be embraced by an audience. In Rep. Barton’s case, the consequence of accepting his narrative of out-of-control government power is that BP becomes the victim. That consequence, at least at this point in the story, is simply unacceptable. While few corporate defense clients carry as high negatives as BP does right now, negative attitudes attached to corporations are still common. In that context, trying to reframe the story in a way that makes the corporate defendant into the victim will often fail for the same reason that Rep. Barton failed: The audience is unsympathetic. For this reason, any attempt to reframe to the benefit of a maligned party in litigation needs to be preceded by a critical first step: rehabilitation. Build a positive case for the client, or as positive as the facts allow. Explain everything that the company did right, and every way that the company lived up to a high standard. When an audience might be ready to see the party as a potentially worthy beneficiary, then you can try to reframe in a way that would put responsibility on the other party. Tell a positive story first, before trying to reframe the story against the other side. Rep. Barton’s strategy failed because he was unable, in the current situation, to say anything positive about BP first.
The lesson is that if you think you are making sound, logical, and otherwise persuasive arguments, but they have the consequence of aiding a blameworthy party, then you are being a friend of the devil. And, notwithstanding the old Grateful Dead song, most jurors will say, if you’re a friend of the devil, then you’re no friend of mine.