The ballots are tallied and the balloons deflated. Congratulations to Gov. Mitt Romney on a hard-fought campaign and to President Barack Obama on his victory. Lawyers of all political stripes can learn some lessons from the campaign and the election (for my thoughts after the 2008 election, click here).
1. You can’t change the facts, but you can change the story. A jury consultant taught me this lesson, and the election bears it out. Obama wisely decided not to fight it out on whether the economy was or was not getting better. Instead, he reframed the issue into a referendum on Romney’s character, with the question becoming a yes or no on whether Romney could be trusted.
2. Trust the data. Ever hear of Nate Silver? He writes the FiveThirtyEight blog for The New York Times. He predicted the outcome correctly in all 50 states, wrote that the president had a 90 percent chance of being re-elected and just about nailed the popular vote. He did so by looking at all the polls and dicing and slicing them with algorithms he developed and wrote. Those who didn’t want to hear his message mocked him. It is only natural, and all too human, to reject the message we do not want to hear.
I was watching Fox News on election night, and it predicted that Obama won Ohio. Karl Rove, now a Fox commentator, disagreed on live TV, compelling one of the Fox anchors to take a microphone, go to where the analysts were stationed and interview them. (You can see it on YouTube, just type in “Rove Meltdown”).
Lawyers can be this way: rejecting the outcome a jury focus group predicts in favor of a gut-feeling that we somehow can find a path to victory. Do not misunderstand; much of what attorneys do requires instinct and reliance upon a gut feeling. But when it is solid data versus a feeling, go with the data. Data has zero ego invested in the outcome.
3. Being dismissive and/or patronizing is not a strategy. Obama lost the first debate. Maybe it was the altitude in Denver, or perhaps he was unprepared. Or it could have been a lack of respect for Romney based on the president’s opinion of the governor’s intellectual throw weight. Lawyers must remember to treat each opposing lawyer as if he was the reincarnation of Clarence Darrow.
And while the president won the next two debates, he lapsed into a patronizing attitude on one occasion, clearly exasperated at the governor’s lack of insight into military history. The president lectured the challenger: “We have these things called aircraft carriers where planes land on them. We have these ships that go underwater, nuclear submarines.”
Remember, human beings have a choice to be snarky or not. When tempted, pick "not."
4. Start with the concession speech and work backwards. I read Romney’s concession speech (and re-read former presidential candidate and U.S. Sen. John McCain’s). They are effective because they are heartfelt. I was left wondering: Where was this very human voice during the campaign?
Politicians, like lawyers, are so guarded in what we say and so paralyzed by concern that we won’t use the right word at the right time. That produces a diluted and neutered message composed of diluted and neutered words.
Listen to McCain’s vivid speech: “A century ago, President Theodore Roosevelt’s invitation of Booker T. Washington to dine at the White House was taken as an outrage in many quarters. America today is a world away from the cruel and frightful bigotry of that time. There is no better evidence of this than the election of an African-American to the presidency of the United States.” And then this at the close of the speech: “Americans never quit. We never surrender. We never hide from history. We make history.”
It's great stuff. We never go wrong, as lawyers or politicians, by speaking from the heart.