12 Aug 2004 O’Neill v. Kerry

In Wednesday’s New Republic Online, Kenneth Baer argues that it would be in John Kerry’s interest to sue Swift Boat Veterans for Truth.

Trial lawyer William J. Dyer takes an opposing view on his BeldarBlog.

My [limited] observation:

Unfit to Command co-author, prominent SBVT member and Kerry nemesis John O’Neill, who is a trial lawyer, seems to be mapping strategy using tactics he learned in courtrooms. If I’m right, this dispute — however it may be resolved — is unlikely to unfold in the manner typical of past political controversies.

Modern political controversies have tended to be battles of the soundbite, as each side attempts to appear to have the upper hand during each news cycle. So campaign consultants tend to be experts in mastering this skill. Subtlety, moreover, is no virtue to a campaign manager. He’ll use the political equivalent of a nuclear weapon as his first option.

Trial lawyers, on the other hand, have mastered death by a thousand cuts. Subtley helps them trap an opponent when he’s least expecting it. Soundbites and their equivalent of a news cycle (ending the day on a high note, for instance) play but a supportive role.

Trial attorneys tend to release evidence in a slow and (they hope) damning drip, drip, drip. They master pacing. Political strategists let out all their talking points pretty nearly the minute they think of them. Pacing to them is something to do when poll numbers don’t look good.

The craft of trial lawyering is different from that of campaign consultants in another way, too. Campaign consultants don’t worry too much about the truth. If they can convince you that Candidate X will deliver world peace and prosperity within a day of taking office, they’ll gladly do so and call it a good day’s work — regardless of the truth.

Yes, of course, trial lawyers lie, too — sometimes in the most preposterous ways. (Witness various arguments against tort reform.) But basic training in the trial lawyer craft is that an attorney should keep his feet on the firmest ground available. Trial lawyers are taught not even to ask questions in trials unless they know what the answer is likely to be. By contrast, you can’t watch two minutes of a political debate on a cable TV talk show without realizing that campaign people will say nearly anything.

If caught falsely promising world peace, a political candidate is trained simply to ask: “Why is my opponent against world peace?”

Political campaigns commit logical fallacies with abandon. Sometimes doing so is the only reason they are successful. (Witness Bill Clinton’s successful effort to beat back impeachment.) Trial lawyers do so only at their own peril.

O’Neill v. Kerry will played out by very different strategies than that parallel competition, Bush versus Kerry.