Friday, September 16, 2011

Win Your Case With Demagoguery, or, The Courtroom Machiavel

ADAM HANFT's brilliant essay on selling to the TRUTHINESS* voters on juries and at large.  Too, too large:

Click here: Adam Hanft: The Casey Anthony Brand Wins

Cross-Posted from

Yesterday's surprising verdict was, simply put, a supremely emotional consumer purchase decision. Though a potential death sentence was at stake, the process by which jurors acted as purchasers followed well-established patterns of perception. Jurors listened, drew conclusions and eliminated unpleasant realities that interrupted their existing belief structures in the same way that consumers hear product arguments -- or political arguments -- and toss out the inconvenient, or painful.

To continue the metaphor, the prosecution lost because they acted like product managers, PowerPoint logic in tow. The product manager says, "Buy our widget for all these rational reasons" and the state argued, "Buy our argument for all these rational reasons."

But the defense understood that the case rested on the strength and believability of the Casey Anthony brand -- a brand that the media had been trashing for years before the trial began. Even though she never took the stand, the case rested on whether or not the jury believed she was capable of the horrific murder of which she stood accused. So while the state tried to connect the dots, the defense knew that they had to overcome the viscerally toxic aspects of her behavior by creating an emotional scaffold for jurors to grab onto, a neural framework for re-branding her, for thinking of Casey Anthony in a way that would allow them to resist the prosecution's logical appeals.

The defense knew that the music mattered as much, if not more than, the words.

Here are three branding strategies that the defense successfully leveraged:

Create positive associations that link to deeply seated emotional networks.

The defense showed a lot of footage of Caylee to convince the jury that Casey was a good mother. It worked. Images are depth charges that function on an unconscious level. Those videos branded Casey brilliantly, connecting her with existing, powerful imprints of mothering. After all, bad mothers don't care enough about their children to memorialize every detail of their lives. That footage normalized her, made her relatable.

The more this footage was shown -- by either side -- the better it was for Casey. And the harder it was for the jury to shut off the neural networks that linked her to the imprint of a loving mother. And, in turn, the easier it was for the jury to accept the defense's arguments -- and to dismiss the hard-partying image the prosecution sought to create.

It's the Casey Anthony version of Johnnie Cochrane's "If it doesn't fit, you must acquit." If the defendant's behavior doesn't fit what you see of them, you must acquit. Behavioral psychologists call in the confirmation bias.

It's a bad time for authority figures. Take advantage of it.

Even though the official syntax is "The People Versus Casey Anthony," jurors can see it as the all-powerful government at war against an individual. And if you read any of the polls, you'll see that Americans are increasingly skeptical of what their government has to say to them, and I believe that translates down to prosecutors -- particularly arrogant ones who laugh and smirk during closing arguments. Because there is such a built-in mistrust of the government, the slightest weakness or flaw in the prosecution's case -- and there was no shortage of them -- becomes magnified.

When Jose Baez, in his summation, said that the government was using "checkbook prosecution" he was tapping into the meme of big, bad government. The government lies and isn't to be trusted in its way -- and Casey Anthony made up imaginary characters and lied in her way. It's a draw.

• It's a good time for accepting the inexplicable.

Terrorists hijack planes and blow up the World Trade Center. The biggest, and allegedly the smartest banks in America created the worst financial crisis since the Great Depression, and nearly bankrupted themselves. Black swans -- the highly improbable -- are everywhere. That's the Casey Anthony brand narrative that the defense sold: The truth can co-exist with a defiance of logic.

The absence of any forensic evidence linking Casey Anthony to the murder gave the jury something to hang their existential doubts on; despite the densely patterned wallpaper of lies she told about one imaginary friend after the other, the mother didn't kill the child. The times in which we live created room for the jury to develop a level of comfort with what, outside the courtroom, appeared to be a totally absurd narrative.

There will be no shortage of theories proffered about this case, but unlike the O.J. judgment, where the arguments revolved around color lines, the Casey Anthony decision is more complex. Beyond the prosecution's tactical mistakes -- and the argument that they should have gone for a lesser charge is a good one -- is the fact that there were two brands fighting for the sale.

On one side was the brand of motherhood. That's a damn strong brand, even when that motherhood waits a month to report her daughter's disappearance, and feels no compunction about pole dancing and getting a tattoo in this frightening period of uncertainty.

On the other side was the brand of power and authority, a brand with unlimited resources, a brand that is trusted less and less every day.

We know the outcome.

Which leads to the question: What kind of brand are you selling?

*Click here: Truthiness - Wikipedia, the free encyclopedia

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