May 1, 2014

Dissociate (to Separate Bad Image from Good Image in Litigation)

By Dr. Ken Broda-Bahm: 

Cutting a piece of Rope

At the start of their game last Sunday, members of the L.A. Clippers ceremonially left their warmup jackets in a heap in center court, and warmed up with their shirts turned inside-out in order to conceal the name and logo of the team. This act came in response to recorded comments by team owner Donald Sterling telling his girlfriend “not to bring them [‘black people’] to my games.” The response by the players was a move of dissociation: a way to say “We are not that,” and to clarify, in no uncertain terms, that the owner’s racism does not represent the team. This need to dissociate – to separate one meaning from another – is common in all communication situations, including those that involve the potential for litigation. Recently, for example, General Motors made the bold move of offering a full and complete apology for its inaction in addressing a long-term problem with its ignition switches, but in subsequent congressional testimony, CEO Mary Barra was careful to draw a distinction between the “Old General Motors” prebankruptcy, and the “New General Motors” that today stands before congress, court, and consumers. 

Dissocation plays a role in lower profile cases across the country as well. A range of litigation-relevant situations create a need to communicate that “we are not this.” Like most good persuasive strategies, the notion has its roots in rhetoric, the ancient and modern study of the best available means of influence. But the idea is more than just ivory tower philosophy.  Dissociation also translates into some important practical strategies worth considering by trial attorneys in a number of situations. This post takes a look at the underpinning, as well as the concrete strategies of dissociation. 

Dissociation: The Rhetoric of Separating the Bad from the Good

First off, a wonk alert: As a field, rhetoric is sometimes viewed as a little insular and academic — on the opposite end of the spectrum from practical advice. Even its name can sound like an insult. But as a student broadly focused on communications, I have found my time spent in rhetoric to be among the most useful and most applicable as I provide advice on cases bound for trial. Yes, the scholarly articles and books tend to speak to their own audience in their own language, not always keeping an eye on concrete implications. But the benefits of understanding persuasion from a rhetorical perspective can be enormous. 

Dissociation provides a perfect example of a rhetorical theory with broad practical applications for working persuaders. An explanation and theory of rhetorical dissociation was originally expressed in a very influential book called The New Rhetoric (1969) by Chaim Perelman and Lucie Olbrechts-Tyteca. “Pairs such as means-end, appearance-reality, name-thing, letter-spirit, opinion-truth, and so on, establish two dissociated modes,” they explain, “in which the first is devalued and judged inferior to the second.” 

For practical persuaders, that invokes a common need, and the strategic question for litigators is how to accomplish that separation. Let’s say that, like the Clippers, a party has a need to separate itself from one of its parts. Or, like General Motors, you need to separate a present image from past actions. Or, at a more basic level, let’s say that any other litigator needs to separate the core of the case from its periphery, or the reality of the case from it’s perceptions. Or, more specifically, a medical malpractice plaintiff would need to separate the standard of care from the negligence. 

Viewed in this way, dissociation is not just a strategy, but a basic tool of persuasion. Perelman and Olbrechts-Tyteca go so far as to say that there are really only two ways we persuade: by associating and by dissociating. You either create a connection between your target and something desirable, or you break a connection between your target and something undesirable. 

Looking at the methods of drawing a connection — association or identification — another modern rhetorical scholar, Kenneth Burke, argued that there are three main forms. Applying and repurposing these methods, we end up with three basic tools litigators can use in making a critical dissociation. 

A Material Difference

Persuaders wanting to dissociate the bad from the good can point to a material difference between in facts or circumstances. General Motors, for example, can argue (and is arguing) that its 2009 reorganization created a materially New GM, and as far as liability goes at least, the New GM is not responsible for the actions of the Old GM. Finding a material difference — one based in different facts, different circumstances, or different legal status — could also work for other persuaders looking to dissociate. A construction defendant looking to distance itself from some faulty work, for example, could argue that the work was done by an independent contractor, not by employees or subcontractors. This focus on a material difference is probably what comes to mind first for lawyers, but it isn’t the only way or the most effective way to persuasively draw a distinction. For example, if GE’s emphasis on the New GE succeeds in denying plaintiffs the ability to sue, then it may be more successful in the legal courts than in the court of public opinion. 

A Formal Difference

Formal dissociation is more along the lines of what the players for the Clippers did. By removing the symbols that fans might be connecting with Donald Sterling’s offensive comment, they showed their own distinction in formal terms. “The team is not the owner,” the message was. Formal identification is what takes place whenever a witness dresses down a little bit to be closer to a jury panel, or whenever a politician wears the hat of whatever organization he is speaking to. On the flip side, a dissociation is accomplished by rejecting those symbols, or at least setting them aside for a moment as the Clippers players did. GM, for its part, might also be looking to emphasize the new “look” and new leadership in and out of the courtroom. In trial presentations as well, those formal differences can be helpful to your message. In an environmental legacy case, for example, a defendant might use a different graphic style — different colors, fonts, design, etc. — when talking about the former companies that caused the problems and the present company in court. Even those formal differences can help the jurors fight the tendency to lump all the companies together. 

A Transcendental Difference

A final way to draw a distinction carries the evocative name “transcendental,” but what it really means is something that draws a distinction at the level of idea or principle. Donald Sterling’s apparent embrace of racism is at odds with the team’s rejection of it and with the composition of the team itself. That difference in principle transcends the fact that the team and owner are still engaged in a common business enterprise. Dissociating based on that difference in principle is what GM CEO Mary Barra tried to do in her congressional testimony as well: “Today, if there’s a safety issue, we take action,” she  said, “(If) we know there is a defect on our vehicles, we do not look at the cost associated with it. We look at the speed in which we can fix the issue.” That commitment, presumably new, is offered in order to dissociate New GE from Old GE, and more subtly, to serve as a reason for not condemning the former for the sins of the latter. 

The upshot of all of this is that when faced with the common need to separate what is viewed as good from what is likely to be viewed as bad, you have three tools for doing so: material dissociation, formal dissociation, and transcendental dissociation. Taking a broad view and potentially using all of the tools in the tool box should help. 

It is also worth noting that strategies of association and dissociation are often used together. For example, the chant being embraced by Clipper’s fans at games is now “We are one!” with the “we” presumably meaning everyone but the owner.  

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Other Posts on Rhetorical Theory: 

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Photo Credit: 123rf.com, used under license

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