So, in case you didn’t hear, we had an election this week…
The night before the election, I was listening to "Keepin’ it 1600", a podcast hosted by former Obama administration aides. They were unabashedly confident that Secretary Clinton had the keys to the White House in her pocket.
24 hours later, they, like many others in the news media, were scratching their heads and asking, "What happened?!?"
Every poll, from ABC News and Reuters to CNN and FOX news had Clinton winning, so…. How did Trump win?
To quote the Keepin’ it 1600 podcast from the day after the election:
"It turns out that Donald Trump’s theory of the case… was just better."
Regardless of your personal feelings about the outcome, there are some important trial lawyer lessons to take away from Trump’s victory.
Lesson #1: These Voters Will Be Your Jurors
First of all, it’s important to remember that the people who voted for Trump are the same people who will be serving on jury duty Monday morning.
It doesn’t matter whether you agree with them or not… They will be the people deciding your client’s fate on Monday.
If you can’t (or won’t) understand how the Trump voters feel or why they voted for him, you won’t be able to talk to them or persuade them to vote for your client.
Invest the time to find out how the jurors in your county voted and how they think. I don’t know if your local election supervisor offers the same level of data that I have available in my jurisdiction, but I can pull up polling data by precinct, giving me the power to touch the pulse of different parts of my community. Get it and study it – it’s worth the time.
While you’re at it, talk to people who voted differently than you.
The internet lets us withdraw from opposing viewpoints and surround ourselves with news that we agree with.
That’s the kiss of death for a trial lawyer.
The greatest trial lawyers know how to put themselves in other people’s shoes and feel what they feel. Clinton’s husband was a master at that. People mocked him when he said, "I feel your pain," but his ability to convey his empathy was one of his keys to winning the White House.
Before your next trial, you need to put on their shoes and walk around for awhile.
Go somewhere where people hold diametrically opposing points of view from your own, and make the effort to understand why they believe what they believe.
You don’t need to change your mind, and you certainly don’t want to try to change theirs. Your only goal is to understand why they feel the way they do.
This is a spin-off from one of my previous recommendations, where I recommended going to Wal*Mart at 3 AM. You probably don’t normally shop at Wal*Mart at 3am, but these people are going to be your jurors, so as the trial lawyer, it’s your job to understand why they feel what they feel and why they think what they think.
If you don’t, your client will pay a hefty price.
Lesson #2: Talk to Be Understood
There was lots of commentary about how we are dealing with "low information" jurors who can’t (or won’t) understand anything over a 6th grade vocabulary level.
One important critique that I saw repeated time and time again was that Clinton didn’t know how to talk to these voters.
You probably didn’t have any difficulty understanding her. You never got lost in the middle of a speech and said, "Huh?"
But you’re not most people.
In the Rolling Stone article, "President Trump: How America Got It So Wrong," Matt Taibi wrote, "we heard voters saying they were literally incapable of understanding the words coming out of Hillary Clinton’s mouth."
To illustrate the point, he quoted a supporter he met at a Trump event who told him, "When [Trump] talks, I actually understand what he’s saying. But, like, when fricking Hillary Clinton talks, it just sounds like a bunch of bulls***.”
Her problem, of course, is the same as yours: She has a law school education.
Compare Clinton’s speech style to Trump’s.
Commentators said that Trump’s language may have been the simplest political rhetoric that’s ever been used on the campaign trail.
Voters never had to stretch their brains to understand what he was saying. He spoke at (or below) their comprehension level, never above. No one listening to Trump speak ever walked away scratching their heads and saying, "Huh…. I don’t understand what he was trying to say."
On a personal level, that rankles me at my core. I don’t want to live in an Idiocracy world. The smarter we are, the better we are, and I hope that as trial lawyers we can use our considerable power to educate the citizenry and raise the level of discourse.
But that’s a goal we should work towards outside of the courtroom.
If you try to undertake that goal inside the courtroom, you should be brought up on ethics charges, because you’re neglecting your responsibility to your client.
To best represent your client, you must be understood.
When jurors can’t understand you, they can’t be persuaded. That’s why you must meet them where they are and as they are.
One of the best examples of this can be found in Paul’s letter to the Corinthians (1 Corinthians 9:19-22):
Though I am free and belong to no one, I have made myself a slave to everyone, to win as many as possible. To the Jews I became like a Jew, to win the Jews. To those under the law I became like one under the law (though I myself am not under the law), so as to win those under the law. To those not having the law I became like one not having the law (though I am not free from God’s law but am under Christ’s law), so as to win those not having the law. To the weak I became weak, to win the weak. I have become all things to all people so that by all possible means I might save some.
To put it succinctly: He met them where they were.
He didn’t try to change them or change their beliefs… He met them where they were, accepted them as they were, and spoke to them standing in a place of common ground.
You must do the same.
If your jury consists of Rhodes Scholars and rocket scientists, you may perorate with as many sesquipedalian words as you please.
But if your jurors have difficulty understanding 8th grade level language, you need to dial down your vocabulary.
Here’s the important point though… You can’t talk down to them, and you need to feel comfortable and confident, regardless of the vocabulary level at which you’re speaking.
She’s very comfortable speaking at the highest vocabulary levels (listen to her speaking at committee meetings and hear how confident and composed she sounds), but when she tries to dial down her language, you can sense her discomfort. It’s not her, it’s not her native tongue, and she’s not comfortable speaking it. Voters (and jurors) pick up on that type of internal conflict.
Trump, however, is very comfortable speaking at that level. It’s not because he’s uneducated (he earned a B.S. from the Wharton School of Business and I’ve heard he’s a voracious reader), it’s because he’s trained himself to shift comfortably between different vocabulary levels.
Don’t let your law school education prevent you from being understood.
Get comfortable speaking at every level. Speak with people smarter than you, speak with people dumber than you, and speak with everyone in-between. Speak with elementary school students and speak with academic scholars and speak with the guy behind the counter at the gas station…
he more you talk, the more comfortable you’ll feel, and the easier it will be for you to talk to anyone.
Lesson #3: Target the Most Valuable Voters
According to results from a few hours ago, Clinton is winning the popular vote, leading by about 1% According to Google, the current tally is 60,072,551 votes for Trump, and 60,467,601 votes for Clinton.
But not all votes are weighted equally.
Clinton may have won more total votes, but Trump won the votes he needed to win the Electoral College.
Look at the types of counties where he resoundingly won:
· Rural counties: 90.5%
· Counties where less than 5% of the residents were foreign born: 91.9%
· Counties where median income was less than $50,000: 88.5%
· Counties where less than 20% of adults have college degrees: 92.2%
· Counties with populations less than 10,000: 93.7%
Separating leaders from the sheep dramatically changes the dynamics of jury deliberation
By winning the popular votes in those areas, it delivered an electoral vote landslide: 290 votes to 228.
At the end of the day, the only votes that matter are the electoral votes. (Trump is the fifth president to be elected despite losing the popular vote.)
Here’s the trial lawyer lesson: Just like not all votes are weighted equally, not all jurors are weighted equally, either.
Some people are leaders, and some people are followers.
If you can get the leaders on your side, it has a disproportionate impact on your verdicts.
Targeting the right jurors during jury selection is one of the most effective ways to win more trials. If you can identify leaders in the jury pool who will be favorable to your client, they are the most valuable people in the courtroom, and you should do everything you can to seat them on your jury.
Officially, they only get one vote, the same as everyone else.
But practically speaking, they count for more than that, because they have the power to persuade other jurors and rally more votes. Your dream juror is a strong, persuasive leader who truly believes in your client’s case. If you can identify and rally those potential voters, your client will win.
One final thought on all of this…
Politics is ugly. Campaigns, especially presidential campaigns, are often conducted with a scorched earth mentality.
But we’re all in this together, so afterward, we must pick up the pieces and move forward towards the goal of a better country.
To quote Lord Baelish in Game of Thrones, “We only make peace with our enemies. That’s why it’s called ‘making peace’.”
Clinton began that process in her concession speech, and she said, "I hope that he will be a successful president for all Americans."
We should all wish the same.