By Ken Broda-Bahm:
The buzz following Thursday's vice presidential debate between Congressman Paul Ryan and Vice-President Joe Biden has been that it was a substantive and spirited debate -- with an emphasis on spirited. Both candidates appeared to be quick to challenge and eager to engage. Both appeared to be glad to be there. As summed up by CNN's John King in the moments following the broadcast, they are "happy warriors." Perhaps that happiness is understandable, since debate season is a high point of attention to the office of Vice President. On the other hand, the difference between especially the President's apparently reluctant and professorial performance in the first debate, and the greater level of feistiness from those at the bottom of the ticket, may have as much to do with personality and attitude. Not just as a political tactic, but as an interpersonal trait, it helps to relish the sport of argument.
There are certainly other ways of viewing argument: as an unpleasant conflict, a sad necessity, or a grim battle. For advocates and persuaders in all contexts, including litigation, situations involving argument present us with a choice of how we position ourselves within the conflict. Finding energy and even joy in the argument can be an important part of a persuader's image, dynamism, and effectiveness. In this post, I'll be using the vice presidential debate as a handy example of the advantages of being an eager advocate, some of which can be applied directly to the psychology of a trial lawyer.
Of course, for political junkies like me, watching the debate is a spectator sport of sorts, with the vice presidential debate actually being a highlight because, freed from some of the need to be "presidential," they often take the role of "attack dogs" of the campaign. But where the relevance meets the road is where there are practical takeaways that apply to advocates in other contexts, including that of a lawyer truing to win in front of an arbitrator, judge, or jury. From this debate, I see three lessons that relate to any advocate's ability to be a happy warrior.
1. It's Never Personal
From the perspective of the audience, a public argument - like a political debate or a trial - should never appear to be a personal grudge match among combatants. It was no accident, for example, that Vice-President Biden consistently refers to Congressman Ryan as "my friend," even while savaging his policies and priorities. Similarly, it was no accident that Paul Ryan took a moment early in the debate to recognize the military service of Joe Biden's son Beau, even as Ryan criticized the administration for failing to protect the Libyan ambassador.
Of course, in reality, disputes can be personal, and in the context of a lawsuit or a negative political campaign, that can mean deeply personal. In these contexts, it's all the more important to keep the audience and decision makers focused on substantive elements of the dispute rather than interpersonal ones. Instead of using the overworked phrase, "with all due respect..." (a phrase that, through intonation, often conveys its opposite), show your respect by seeking an honest opportunity to compliment, or a harmless opportunity to acknowledge that the other side has a good point. More broadly, that respect is shown by keeping your irritation in check and maintaining an attitude and nonverbal communication style that is relaxed and friendly. That is what both the Vice President and the Congressman did, though in different ways.
2. Reactions Are Critical (But Tricky)
Paul Ryan, the Republican vice presidential candidate maintained his good guy image by looking on attentively, but calmly and respectfully, as his adversary spoke. Joe Biden, on the other hand, clearly had a different strategy in mind. Following the presidential debate the week before, one of the main criticisms the President's supporters leveled against Obama is that he didn't react often enough to the sharp elbows and dubious factual claims being thrown by Romney. Trying to turn that around, Biden embraced the role of "fighting Joe" and didn't limit himself to his official speaking time. Instead, he grinned, shook his head -- clearly signalling when he thought Ryan was making a questionable claim -- and frequently interrupted in order to do his fact-checking on the spot.
Now, let me be clear: Don't be Joe Biden in a courtroom. Nonverbal reactions during an opponent's time can lead to a major loss of credibility. Indeed, just last weekend, I interviewed a former juror who said this about a client representative at counsel table: "He gave off a lot of cockiness as he sat there, rolling his eyes, passing notes, and laughing...it was like, 'is this high school?'" When you think you're "off stage" at trial, remember that you're never really off stage, and your model here is Paul Ryan, not Joe Biden.
But in a broader sense, the Vice President was doing something important that does apply to litigants: namely, making sure that reactions are known. An occasional and respectful "Malarkey" can be important when it is exercised in your next opportunity to hold the floor. And there are also some legitimate ways attorneys can interrupt the flow. Beyond making a well-placed objection (a tactic that can be overused) a good technique is to request a voir dire of a witness, on a foundation issue for example, midway through your adversary's direct. Instead of a softly-spoken objection to the court, you have the chance to take the stage and make the point directly to the jury.
Another great tactic to use when your witness is called adverse is to usually ask to engage in your full direct at the first opportunity. Instead of recalling the witness during your own case, argue that it would be more convenient for the witness and the jury for you to insert a slice of your case into their case. It is a nice way to "pull a Biden" by jumping into your adversary's argument.
3. Disagree, With a Smile
Of course, the essence of being a happy warrior is the attitude that you carry and, most importantly, convey. Both Biden and Ryan were passionate and friendly, treating each other with bemusement rather than contempt. Humor, for example, can often take the uncomfortable edge off of a sharp argument, while taking nothing away from that argument's effectiveness. Joe Biden, for example, when addressing Ryan's attack on the poor economy put it this way: "They talk about this great recession that fell out of the sky, like, 'Oh my goodness, where did it come from?' It came from this man voting to put two wars on a credit card.” Ryan, for his part, couldn't help needling Biden for the President's widely panned performance the prior week, when he tried to check Biden's habit of interrupting by chiding, "I know you’re under a lot of duress to make up for lost ground, but I think people would be better served if we don’t interrupt each other."
Both of these take-downs were delivered with a sly smile, almost a wink, and a healthy dose of Irish charm. Attorneys have the same need to keep things light, even as you are trying to attach a heavy weight around your opponent's neck. The point where this need for a friendly visage is most acute in cross-examination, but that is also the point where many attorneys will let it slip. Clearly cross is a time to score points, drain a witness's credibility, and build your own story. But jurors don't want to see Dr. Jekyl and Mr. Hyde when they compare the attorney in cross to the attorney at all other times. As the same juror I interviewed this past weekend noted, "I understand that they need to get answers, but I was surprised at how aggressive they became." The difference between aggressiveness (a bad thing) and assertiveness (a good thing) is often tone, and what that says about intent. Some of the best cross admissions I've seen have been elicited not with a red face and a raised voice, but with a strategic set up and a "come on in" kind of smile.
The 2012 vice presidential debate is likely to have a pretty short turn on the news cycle, but at least Biden and Ryan appeared to have enjoyed the ride. As attention swiftly moves on to the next presidential debate tomorrow, let's take a lesson from the one vice presidential debate: When you're pouring your whole self into these arguments, you may as well enjoy it.
The 2012 Presidential Debate Series:
Other Posts on Lessons of Political Speech:
- Embrace Positive Messaging
- Learn From Your Wins and Your Losses
- Take It From Rep. Joe Barton: Don’t Be A ‘Friend Of The Devil’
Image Credit: Donkey Hotey, Flickr Creative Commons (edited and combined by K. Broda-Bahm)