Being in my third (and final, hooray!) year I have loaded up on Trial prep courses this semester. I have noticed a striking similarity between the arts of trial advocacy and political campaigns. Ultimately they both have similar objectives: to convince citizens that they should vote your way.
One of the biggest failures of the Kerry campaign was that he seemed to have forgotten all the lessons he learned as a prosecutor about presenting a case to the public. Whereas C+ Augustus, the non-lawyer, has an intuitive grasp of the principles.
Below the fold I offer my thoughts on how the principles I've learned thus far can translate to political campaigns. Many of these will be immediately familiar to the lawyers and law students out there.
Build a case theory: The first thing, before anything else, that trial lawyer does is develop a case theory. Essentially this boils down to a short statement of what your client wants and why s/he should get it. In politics we could say that a case theory should be a statement of "why I should be your President" (or Senator or Mayor, you get the idea) For example, in the OJ case the defendant's case theory might be summed up as "The police were under tremendous pressure to make an arrest in this case, because of their known racial bias they zeroed in on the most convenient black man, OJ, to the exclusion of everyone else" Likewise in the 2000 campaign Bush had a case theory: "A black sheep returns to the fold, having learned important lessons about morality and responsibility" (yes I know that there is a tenuous link to reality there, but I'm talking tactics, not substance). Quick what was Kerry's case theory?
No, "Bush is an incompetitant who is leading the country off a cliff," although true, is NOT a case theory that works in the political arena. Although a defense lawyer is able to rely on the argument that the prosecution has not proven its case beyond a reasonable doubt, politicians do not have luxury. They must have a positive theory that answers the question above. To translate to legalese: each candidate has the burden of proof. Which brings me to my second point.
Keep the delivery simple: Or, avoid legalese. One of the biggest mistakes new trial lawyers make, according to what I have been taught, is that when presenting a case they use 10 fifty-cent words when 3 simple ones will do. Think "when you were operating your vehicle" vs. "when you were driving your car." Lawyers and Senators are used to speaking this way and don't think twice about it. And, when speaking to other lawyers (or senators) it may be perfectly appropriate. But when your audience is the general public, you need to keep things as succinct as possible. Slate's Kerryisms illustrate this point to a T. Kerry forgot who his audience was. He was used to speaking with other senators, lawyers and his verbose responses only served to leave the voters struggling to understand what he was saying.
Make sure your argument flows in a logical way: Kerry's habit of improvisation really hurt him here. The thing that springs to my mind is an op-ed in the Times by an English professor where he had his class analyze a Bush speech and a Kerry speech - from an expository sense. The results came as a surprise to me. But the Bush speech was a model of effective writing. For example take this random paragraph from a Bush speech in FL (link):
To make sure health care is available and affordable, we must do something about the junk lawsuits that are running up the cost of health care and running good docs out of practice. topic sentence that states the issue By forcing doctors to practice defensive medicine, medical lawsuits cost the government, and therefore, you, about $28 billion a year. Lawsuits drive up insurance premiums, which drive good doctors out of practice. example/fact I have met too many OB/GYNs who are worried about being able to stay in practice. I have met too many of their patients, women who are worried about getting the health care they need. example/fact See, you can't be pro-doctor, pro-patient, and pro-personal injury lawyer at the same time. You have to choose. My opponent made his choice and he put a personal injury lawyer on the ticket. Opponent's position/supporting fact(s)I made my choice. I'm standing with the docs and the patients. I am for medical liability reform now.Bush's position
Meanwhile, if you check the Kerry speeches in the link above they do not have such coherent paragraphs. Rather, from what I can see he offers a laundry list of problems with the Bush admin then after bombarding his audience with a host of problems only then begins to offer his positions. For example:
George Bush has had four years to do something - anything - to create an economy where hard working Americans can live out their dreams. But instead of seizing the moment, he squandered the opportunity. The problem is, this President either just doesn't understand what's happened to our economy or he understands and doesn't care.
Jobs are being shipped overseas - and his Administration says outsourcing is good for us. He's the first president to lose jobs in 72 years - and they say it's time to celebrate. The first president in 11 presidents to lose jobs on his watch. Wages are falling, costs are rising - and they tell us, hey, don't worry, this is the best economy of our lifetime! The first president in 70 years to see family income decline every year of his presidency.
Remarkably, the President said he was proud of his record. Proud of his record? Proud of millions of Americans unemployed ... proud of tens of millions without health insurance ... proud of millions of families facing rising costs and falling incomes? And this on the day the federal government announced the largest deficit in American history. If that's what he's proud of, I'd hate to see what he's ashamed of.
(it goes on)
Where are the conclusions and positive solutions? This sample is even worse than it seems as he never offers a solution to the problems he describes for several more paragraphs. Effective arguments must be topic based. You don't detail all the problems with the other side's case before offering all your opposing arguments. You make it harder to follow your case theory that way.
In conclusion, you must walk the jury/voters through your case theory. You must make a topic based argument that, topic by topic, presents the issue/topic, facts relevant to the issue, opponent's position and your superior solution. Make it easy to follow for the listener. This is why Kerry excelled in the debates, because, by their nature, they are topic based so he was limited to a single topic at a time.