Source of article The Advantage Blog - Tsongas Litigation Consulting.

The 2016 election year is the most partisan in recent history. It seems that many voters are so entrenched that some have wondered if one of the most classic forums of democracy, the political debate, might be rendered moot. After the first presidential debate, legendary journalist Dan Rather even posted on Facebook that, “…whatever civility once existed in our politics is tonight officially dead. Never in the history of televised debates have we witnessed such a show.” But the ultimate question in any persuasive event is, were people persuaded? If they were, then mission accomplished. If they weren’t, then it’s easier to wonder if this type of debate may actually be outdated.

But, persuasion did occur in the debate between Hillary Clinton and Donald Trump. It seems that in the current media environment, the presidential debate is simply different than it used to be. Bloomberg Politics reported, “In the span of just a few hours, Clinton saw her odds of moving back into the White House rise from an already-high 69 percent before the debate to 73 percent afterward, according to prediction market aggregator PredictWise. Trump’s chances slumped accordingly.”

While there are elements of politics that don’t translate to everyday life or even litigation, there are two takeaways that could help a witness on the stand facing cross-examination or even assist in a debate with a colleague in a meeting. The first is in how to handle bad facts, and the second is ensuring verbal and nonverbal congruence.



Clinton knows that her favor in the polls decreases as discussion of classified emails increases. Her justifications in the past just haven’t helped her. In this debate, she applied some classic techniques to handling bad facts. In just 46 words, Clinton stated that her use of the private email server was a mistake and one for which she takes full responsibility—then switched the subject to Trump’s tax returns (a subject he clearly does not want to talk about). Trump goes back to the private server subject one more time but Clinton just takes a little more of the criticism and waits for the moment to pass…and it’s over. The toughest issue for Clinton to handle was relegated to mere minutes in a 90 minute forum.

Compare this to Trump’s response to moderator Lester Holt, who asked Trump about his views on Barack Obama’s citizenship status. His response went on for minutes, unable to distill his message down to a comprehensive reason for questioning the president’s citizenship. Here is an excerpt of his response:

I’ll tell you very—well, just very simple to say. Sidney Blumenthal works for the campaign and close—very close friend of Secretary Clinton. And her campaign manager, Patti Doyle, went to—during the campaign, her campaign against President Obama, fought very hard. And you can go look it up, and you can check it out.

…And if you look at CNN this past week, Patti Solis Doyle was on Wolf Blitzer saying that this happened. Blumenthal sent McClatchy, highly respected reporter at McClatchy, to Kenya to find out about it. They were pressing it very hard. She failed to get the birth certificate. When I got involved, I didn’t fail. I got him to give the birth certificate. So I’m satisfied with it. And I’ll tell you why I’m satisfied with it. Because I want to get on to defeating ISIS, because I want to get on to creating jobs, because I want to get on to having a strong border, because I want to get on to things that are very important to me and that are very important to the country.

…I figured you’d ask the question tonight, of course. But nobody was caring much about it. But I was the one that got him to produce the birth certificate. And I think I did a good job. Secretary Clinton also fought it. I mean, you know—now, everybody in mainstream is going to say, ‘Oh, that’s not true.’ Look, it’s true. Sidney Blumenthal sent a reporter—you just have to take a look at CNN, the last week, the interview with your former campaign manager. And she was involved. But just like she can’t bring back jobs, she can’t produce.

Here Trump seems to attempt to shift focus to Clinton, claiming she could not produce jobs for the country, but because he had not answered the question “head-on,” Holt stayed on him. Holt asked the question again, this time tying it back to the intended topic of racial healing, asking Trump what he would say about this to Americans of color.

Well, it was very—I say nothing. I say nothing, because I was able to get him to produce it. He should have produced it a long time before. I say nothing. But let me just tell you. When you talk about healing, I think that I’ve developed very, very good relationships over the last little while with the African-American community. I think you can see that. And I feel that they really wanted me to come to that conclusion. And I think I did a great job and a great service not only for the country, but even for the president, in getting him to produce his birth certificate.

The Economist wrote of this exchange that, “Mr. Trump suddenly had all the self-assurance of a weak swimmer who has just discovered that his water-wings have a fast puncture.” He spent minutes defending his position, but in the end it was unclear what that position was. Holt stayed on the topic as it became clear Trump was unprepared to discuss these “bad facts.”


The Lesson

Even those of us confident in our speaking ability can’t talk our way out of everything. The more time you spend in “bad territory,” the more your credibility is harmed. If you must defend your position, then pick your best reason without belaboring the point. If you can see people looking down and shaking their head as you answer without taking any responsibility, think again. If your audience will find you to be defensive at best and embarrassing at worst, suck it up and eat some crow.

Are you particularly bad at saying, “I was wrong,” “It was the wrong call,” “I regret it,” or “I’m sorry”? If so, you may need to turn to a trusted friend for some advice and support. If you think, “I can say those things just fine. I just don’t have to very often because I almost never need to,” then you may want to have a heart-to-heart with a few friends to get a more honest perspective. If you say to yourself, “No really, I’ve never apologized for anything or ever made any mistakes ever,” then I strongly recommend seeing a therapist.



One of the undying elements of communication (that I have frequently been told seems “so unfair”) is that you communicate one way or another all of the time (Jonathan Lytle wrote about this concept here). Just sitting in court or in a meeting, others in the room are determining what you are communicating and what that says about you. Since communication is an audience-based phenomenon (the receiver of the message cannot look into your brain and confirm their suspicions), the person sending the message is responsible for ensuring the receiver interprets the message accurately. That’s right, if your boss thinks you bore her, when you are actually thrilled by her presence, you have some work to do.

One of the reasons people like to watch Trump debate is that he’s animated. His nonverbal communication is an “in your face” style. It’s entertaining, and it’s one of the reasons he destroyed his Republican competitors one after another. Even when Trump was over the top, you couldn’t help but notice how other competitors acted like they were losing but talked as if they were winning. This is critical because when nonverbal signals are inconsistent with words, the nonverbals win. Are you saying you are thrilled to be here but your shoulders are slumping and your tone sounds disinterested? You will not be seen as genuine by many. Think of the last time you had an exchange with someone who was yelling where you said, “Hey, no need to get angry,” and they said even louder and red-faced, “I’m not angry.” The statement has such poor credibility that it’s a gag routinely used in comedy sketches.

During the debate, Trump had one of those moments. During the last third of the debate, the candidates were asked about presidential temperament. Trump was riled up when he stated, “I also have a much better temperament than she has… I think my strongest asset, maybe by far, is my temperament.” The crowd laughed. This is an opinion, not a fact, but in the moment, Trump’s seemingly ill-tempered response to the question about temperament was ironic to the point of absurdity. NBC commentators after the debate likened it to being indistinguishable from a Saturday Night Live skit.


The Lesson

Whether it is insecurity or competitive fire at the root of the problem, in this situation, emotions are in the way and keeping you from sending a powerful, persuasive message. Imagine, for example, a witness in trial talking about how uptight and mean her boss was. All the while, the boss is at counsel table, steaming and writing lots of little notes on post-its and handing them to his attorney. The boss won’t have to take the stand because he essentially already did through his nonverbal behavior. Similarly, the credibility of a nervous witness who worries about being perceived of as a liar is virtually indistinguishable from a witness who is actually lying.

This communication issue can be addressed through simulation (ideally with video feedback). Whether it’s for a presentation at work or witness preparation for a deposition, simply talking about the event will rarely make a real difference. It is important to play it out and practice. The attorney and witness role-play a deposition or cross-examination to help get the witness feeling comfortable about the issues in the case. The witness will build up the confidence to stand their ground where they have strong feelings, while at the same time learning when to be frank and honest about where they made mistakes or could have done better. The congruence between the verbal and nonverbal message helps keep credibility high even in delivering bad news.

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