Final Argument: Tone (Part 3) – The Presidential Debate

October 5, 2012 Barack Obama

Trial lawyers start working on their final argument from the first day on a case and keep working it until they get up on their feet and start talking. They continually collect ideas, details, and special facts to weave into arguments. They write out the boiler plate arguments like reasonable doubt, presumption of innocence and how to highlight the critical jury instructions. They know these set-pieces will always be part of the argument. They are not prepared in a rush the night before or off the top of their head. These lessons could have helped the President in the first Presidential debate.

The debates are the closing argument of the election campaign. All the policy has been established like the evidence in a trial. Now comes the summing up. It is not the time for detailed facts but rather an argument why you are the better candidate. It is a time to be in command. Command of the facts, the policy, and to articulate them.

Instead Obama was disjointed, convoluted, tired-looking and seemingly out of sorts. His delivery was halting and without energy. He looked down and appeared distracted, as if he had someplace else to go. It reminded me of Bush the First looking at his watch. Romney was focused, forceful and engaging. He was prepared, rehearsed and ready to perform. He could have gone another 90 minutes. Obama seemed unprepared, while Romney had everything together.

Since this was his final argument, Obama should have had full command of Romney’s prior positions. It seemed Romney threw him off by moving to the center. During the primaries, Romney tried hard to be a right wing conservative but that is not who he is. At this debate he moved to the center and this seemed to surprise Obama. Obama seemed stuck in a groove arguing against Romney’s prior positions and Romney kept denying that those were his babies.

Obama and his team should have had citations to the record. The speeches, the policy statements, the debating points from the Republican primaries. He didn’t need demonstrative exhibits or transcripts but he had to use the old Romney to impeach the new Romney. He seem flustered by Romney’s etch-a-sketch evolution. Obama should have known better because this is Romney’s playbook. He tells his present audience what they want to hear. He dumped the right-wing rhetoric and moved to the center, right where the undecided voters reside.

I think Obama’s strategy was to appear presidential. Not to be too aggressive. To appear calm and in control. But this is a hard game to play. It made him look weak instead. Romney gave him opening after opening yet no forceful rebuttal from Obama. His strategy was misguided. This is not the venue to appear weak and passive.

The problem was not about the substance so much as the style. Obama was lackluster and ill-prepared. Not what we want to see in a president. Presidents have to appear in charge. They can’t show any hesitation or fear. They have to get your trust. He had to connect with the audience, show empathy for struggling citizens, all with some energy and enthusiasm. Someone we can believe in.

I always tell trial lawyers do not start the argument by thanking the jury. It sounds phoney. Stick it in the middle somewhere. The first minute has to grab the jury by the throat and tell them why you should win. Barack, next time don’t start with your anniversary, try the 47% instead.