Trial Tactics Tips from George W. Bush

I was trying an auto accident case recently where the Plaintiff’s lost wages were at issue. The Plaintiff did not have an “off slip” from a doctor. Instead, she took off work when she felt like her pain dictated taking a day off. On cross-examination, my client was grilled – over objection – about whether the medical records sitting at the trial table contained an “off slip” from a doctor. The client admitted – somewhat sheepishly – that no note was obtained.

In his State of the Union address in January, 2004, George W. Bush told the American people, “We do not need a permission slip to defend America.” How much energy do you think the administration spent to come up with that line? When a metaphor comes out of the Republican machine – and the Democratic machine, too, to be fair – they gave it some thought. With respect to the Republicans, George Lakoff’s Don’t Think of an Elephant offers great analysis into the GOP’s careful consideration of the use of language and metaphors. Lakoff writes:

What is going on with a permission slip? He could have just said, “We won’t ask permission.” But talking about a permission slip is different. Think about when you last needed a permission slip. Think about who has to ask for a permission slip. Think about who is being asked. Think about the relationship between them.

Personally, a permission slip reminds me of being a kid which reminds me of fun. But I get the point. In my case, my client was a well-respected scientist. The notion of this near workaholic scientist needing a permission slip to take time off from work was more than a little ridiculous.

One bizarre transformation that occurs when a citizen becomes a juror is the development of a poker face. Something about that power that turns people into Mike McDermott. (“Listen, here’s the thing. If you can’t spot the sucker in your first half hour at the table, then you are the sucker.”) I would like a psychologist to write an article about this phenomenon.
But in this case, I could tell by looking at the jurors in closing argument that this metaphor of a “permission slip” resonated with them. At this point, I was more certain that they would award lost wages than medical bills. The jury awarded all of the lost wages sought and, while the verdict was less than I hoped for, it was literally 20 times the offer made just two weeks before trial.

Describing this to the jury in closing statement using the metaphor failure to get a “permission slip” – which no one should need, much less my Ph.D. well respected client – resonated with the jury and may have helped with overall verdict on the final damage award. The point is words matter, metaphors matter and while you can make up your own, it is also a good idea to use those that are tested for “jury appeal” like the metaphors used by the President of the United States.

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