Election 2012, Harvard, Jury Duty, Politics

Obama and Romney Square Off In Political Jury Trial

“I don’t know…I can’t figure out any differences between these guys.”

Last night, Barack Obama and Mitt Romney squared off in a town hall debate, a format specifically designed to sway undecided voters because the political media seems obsessed with the idea that low information voters are super awesome and totally deserving of their role driving the political discourse of the most powerful nation on the planet.

As I watched it last night, it struck me that this town hall format is the political equivalent of the jury trial. The process is driven by staunchly undecided people culled from the local population with a moderator on hand primarily to facilitate the flow of information to the pool of lay observers.

But the two Harvard Law grads seeking the highest office in the nation failed some of the cardinal rules of jury trials.

1. Don’t ask a question unless you know the answer: Perhaps the most repeated piece of advice in trial practice. If you are going to ask a critical question in front of the jury you had best get the answer you want. Getting the wrong answer conveys weakness and undermines your credibility in front of the jury. You’ve been clowned by the witness.

And that jury began the trial with an open mind, meaning every impression a lawyer makes could sway the result. Mitt Romney could have used this lesson yesterday before he stared down the President of the United States and asked whether or not the attacks in Benghazi were described as an “act of terror” the day after the fact (the exchange begins at the 1:04 point).

It got worse when Candy Crowley was prepared to fact check the claim on the spot. That moment reminded me of a judge sustaining a key objection and leaving the lawyer adrift to try and find his or her next move. And Romney had a hard time getting back on track. This has earned its place as the most talked-about moment of the debate.

2. Don’t fight with the judge: Most of the media coverage focused on how the two candidates talking over Candy Crowley disrespected  her as a woman. I don’t accept the chauvinistic premise that this behavior played poorly only because she’s a woman. Rather, Crowley’s role as moderator in a town hall placed her as the equivalent of a trial judge. Jurors tend to like their judges. The judge is the only one on their side. The judge listens to the jurors and takes care of them. Crowley consistently defended her actions as aimed at getting more questions from the undecided voters. When the candidates tried to run over Crowley, they were disrespecting the questioners. It played much different than ripping Jim Lehrer for wanting to ask his precious, utterly banal questions.

This is not a judge. This is a man posing as Clint Eastwood’s empty chair.

3. Don’t let the jury see how the sausage gets made: Obviously a trial involves a lot of bull**t legal maneuvering before the fact. But you know what jurors don’t want to see? All your bulls**t legal maneuvering. Romney and Crowley got in a dust-up about whether or not he got to make an additional response. It came across as whining and worse, wrong since Crowley was the sole arbiter of how time would be kept. Obama also raised an objection to the allocation of time that Crowley patiently shut down. It just played out as though the candidates saw themselves and their negotiated rules as much more important than the undecided voters. I can understand that impulse when most undecided voters act like this, but you can’t let that come across. [As I write these words, one of the audience members from last night is being interviewed and cited her irritation that they talked too much about the rules of the debate. It’s like real-time confirmation of my ramblings!]

Speaking of the legal maneuvering of the two campaigns, take a minute to look through the laughably legalistic “Memorandum of Understanding” that the candidates drafted. To belabor the jury-trial metaphor, this was their pretrial order, and it had some doozies.

(a) Each candidate shall have a dressing room available of adequate size so as to provide private seclusion for that candidate and adequate space for the staff the candidate desires to have in this area. The two (2) dressing rooms shall be comparable in size and in quality and in proximity and access to the debate stage.

I’m shocked they didn’t specify a bowl of M&Ms with all the brown ones removed.

(iv) Each candidate may move about in a pre-designated area, as proposed by the Commission and approved by each campaign, and may not leave that area while the debate is underway. The pre-designated areas of the candidates may not overlap.

That’s a whole provision for “don’t punch each other mid-debate.” This is why people hate lawyers.


Joe Patrice is the author of Recess Appointment, a blog about political rhetoric, and he’ll be dropping in occasionally to write about the intersection of law and politics. To answer the question that you’re probably about to ask, he got his J.D. at NYU and spent ten years working at a Biglaw firm and a white-collar defense boutique. His favorite word is sesquipedalian.

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