Download this articleThere is a decidedly less strident, more civil tone coming from our TVs and radios since November 2nd when the centerpiece of our democracy, Election Day, came and went. It was another banner political season for the champions of free speech. The United States of America set an excellent example for the rest of the world on how to combine the desperation of political candidacy with the sleaze of Madison Avenue. Candidates of all persuasions – Democrats, Republicans, Tea Partiers, Libertarians, liberals, conservatives, incumbents, challengers – use attack ads these days.
Is there anything attorneys can learn from these tactics?
To rise above the noise, ad makers had to get more and more inflammatory as the election approached. In Illinois, Democratic Governor Pat Quinn had viewers cringing with a TV attack ad accusing Republican challenger Bill Brady of supporting mass euthanasia of pets.
In Nevada, Tea Party candidate Sharron Angle claimed in an ad that Senator Harry Reid, a Democrat, supports using taxpayer dollars for convicted sex offenders to get Viagra.
In Florida, incumbent Democratic Congressman Alan Grayson attacked conservative Republican opponent Daniel Webster in an attack ad for wanting to "impose his radical fundamentalism on us," and for being a draft dodger.
In Kentucky, Democratic Senate candidate Jack Conway asked in an ad a rhetorical question about his Tea Party opponent, "Why was Rand Paul a member of a secret society?" And the negative ads went on and on, for weeks and weeks.
The conventional wisdom is that attack ads have become commonplace in election campaigns because they work. The question is, according to whom, and under what criteria? Obviously, not every candidate who used attack ads won, nor did every candidate who used attack ads lose. Pat Quinn beat Bill Brady in the Illinois Governor's race by the slimmest of margins. Harry Reid easily beat Sharron Angle for the U.S. Senate from Nevada. Daniel Webster trounced Alan Grayson for U.S. Representative from Florida. And Rand Paul easily beat Jack Conway for Jim Bunning's old Senate seat from Kentucky.
Certainly there are those in the electorate who will be persuaded by attack ads and vote accordingly, but would the attack ad approach work in court? The instant analysis is that the ads attacking Daniel Webster in Florida and Rand Paul in Kentucky backfired on the candidates that commissioned them. There is probably a greater risk of the "attack" approach backfiring in court, because unlike in the unencumbered world of politics and advertising – especially in 2010 where it wasn't so clear where the attacks were coming from – an attorney can't fire off a volley in court and then duck behind the podium. The triers-of-fact know exactly who is firing the shots.
In addition, the decision-making process of an election and a jury trial are fundamentally different. In court you must get all the decision makers to agree after an open discussion (in some cases a 3/4 majority will suffice). In a political election, the winner only needs one more vote than his or her opponent, and the decision makers vote in secret. There is no deliberation in the voting booth.
CAUTION ADVISED
In my opinion, attorneys using any techniques approaching those of attack ads do so at their client's peril. Attack ads are full of invective, stereotypes and insults. Typically the only evidence presented is a quote from a newspaper article or editorial. The content of even the best newspapers is, aside from the Op-Ed page, hearsay, and we all know what judges think of hearsay. Besides violating the rules of civil procedure, attack ads are an insult to all but the most reactionary, and turn many off to the process. An attorney does not want to turn off any jurors. Political "attack" ads are how not to do it.
It's difficult to prove the effect of negative advertising on voter turnout, but I'll go out on a limb and say all the rancor has to be turning some voters away. Individual elections will have a spike in turnout from time to time, but the trend over the long term is down. The 1876 Presidential Election between Rutherford Hayes and Samuel Tilden attracted 82% of the voting age population. Voter turnouts of 75% and higher were common in the late 1800s. By 1996 the presidential election turnout had dropped to 49%. No presidential election turnout has cracked the 60% mark since 1968. Many state and local election turnouts are considerably less. Some scholars point to the diminishing influence of political parties and labor unions, as well as urban and suburban sprawl weakening a sense of community. If voter turnout continues to drop, and negative attack ads are a reason, can we really say they work?
Maybe the lesson learned from all this is from Colorado gubernatorial candidate John Hickenlooper, former mayor of Denver, who used humor in his ad. He said every time he sees a negative ad he "wants to take a shower." The ad shows him taking several. Hickenlooper was elected Governor of Colorado on November 2nd in a landslide.
Bill Grimes is with Zagnoli McEvoy Foley Consulting in Chicago. He has been a litigation consultant since 1990. Bill was a broadcast journalist from 1974 to 1990.
Sources:
Dave Leip's Atlas of U-S Presidential Elections,http://uselectionatlas.org/
The American Presidency Project, University of California, Santa Barbara, John Woolly, Gerhard Peters, 1999-2010,http://www.presidency.ucsb.edu/data/turnout.php
On the Media, National Public Radio, Bob Garfield, Brooke Gladstone, 2010,http://www.wnyc.org/shows/bl/2010/oct/25/mst2010-political-ads/
This is a nice reminder that we can't take all of pop culture into the courtroom, no matter how great the temptation is for us to emulate all the latest ways to get an audience's attention. I especially appreciate the links to content that bring the points home. This also raises an interesting research question about whether there is greater cynicism in the pool because of all the attack ads.
My gut tells me that the negativity collectively weighs on us – even temporarily in an election cycle – and jurors do bring that with them to deliberations. Which is why Grimes' point about not giving them more of the same at trial is such a good one. Attorneys have an opportunity to be a breath of fresh air among the sea of sharks.
In politics, as in the courtroom, there are (at least) four images fighting for the hearts and minds of decision-makers:
*our image of our side,
*our image of the other side,
*the other side's image of our side, and
*the other side's image of themselves.
Often, in both political advertising and the courtroom, we try to make "us" the "good guys" and the "other side" the "bad guys". The other side usually has the same game plan.
What will be our final image? What will be the final image of the other side?
There is an effect called the "negativity effect" that applies to both political advertising and persuasion in the courtroom as it relates to image management. The effect says this: If you hear two things about a person, one good and one bad, and they are "equidistant" from a neutral point, you will weight the bad information more strongly than the good information, and you will need much stronger positive information to overcome weaker negative information. This is why one really bad fact is hard to overcome, and multiple weakly bad facts give so much trouble.
Political advertising has capitalized on the negativity effect for years, primarily because both research and experience has shown it to work. As voters, we attend to the negative information about a candidate far more than we attend to the positive information. We may dislike all the candidates in the long run, yet we weight the negative information more highly in our decisions of who to vote for.
In a courtroom, jurors act similarly: a negative fact about a client/case carries much more weight than a positive fact, and it takes stronger positive facts to overcome weaker negative facts.
In small group decision-making research, there is a rule of thumb of "3 to 1": for every negative comment, 3 positive comments/facts are needed to offset or overcome it (assuming approximately equally strong comments both directions).
While I would never recommend that the kind of evidence that often underlies political advertising be used in the courtroom, I do give great thought to "bad facts" for our case and how to counter them, along with "bad facts" for the opposing side and how they might the other side will try to counter them. And I keep in mind the four images we are battling over: our image of the defendant, our image of the plaintiff/prosecution, their image of the defendant, their image of the plaintiff/prosecution. I recognize that this battle among these four images ultimately reduces to two images — ours and theirs — and that the integration of those images is ultimately what determines who jurors believe. It is by attending to the overly weighted bad information (in comparison to the good information) in a case that I can best understand how to approach cases strategically, argumentatively, and in jury selection.