By: Dr. Ken Broda-Bahm -
When the public answers current polling on the health insurance reform law, only a minority of 46 percent will say that they support it. But when attention turns to the details of the plan, a majority supports the individual elements. Even opposition to the dreaded "individual mandate" falls to just 35 percent when respondents learn they can keep their employer-provided health plan. So given the opposition that materializes when the public is responding to "the law," rather than to its individual provisions, it appears that a good portion of the public is, to at least some extent, responding not to the actual policy, but to a symbol or caricature -- a strawman -- of the policy.
So what does this have to do with litigation persuasion? A lot. Every lawyer has to both attack and defend, and in that role, you have both a challenge and a temptation. The challenge is that your adversary will be characterizing your arguments, sometimes fairly and accurately, and other times, not so much, and you will sometimes need to clarify a position before you can defend it. And the temptation is that you get to characterize your adversary's arguments, hopefully choosing a fair and accurate route over a strategic opportunity to distort. Beyond the need to make and respond to good arguments, every advocate needs to make sure you are neither defending strawmen, nor creating them. That is an obvious enough point, but according to some new research, as well as some old philosophy, there are some unexpected perils and opportunities for dealing with strawmen in the courtroom.