Roxanne Conlin is an outstanding trial lawyer in Des Moines, Iowa who has had multiple million dollar verdicts. She entered Drake University at 16 years of age and graduated from law school with honors five years later. She had the distinction of being the first woman President of the Association of Trial Lawyers of America (now known as the America Association for Justice). She was invited to membership in the Inner Circle of Advocates consisting of the finest plaintiff’s trial lawyers in the country and which is limited to 100 members nationwide.

Conlin is the lead attorney in a class action lawsuit in Des Moines against the Microsoft Corporation which asks for up to $330 million dollars on behalf of state residents who purchased software. Under Iowa law, a verdict for the plaintiff’s can be tripled. The suit claims the company used its monopoly power to exclude competition and overcharge consumers. The judge has told the jury that Microsoft has already been determined to have had a monopoly and only issue is whether the monopoly resulted in overcharges and if so, how much.. The judge has ordered Chairman Bill Gates and CEO Steve Ballmer to testify at trial. Conlin says they have collected some 25 million pages of material in the seven years of preparation for trial. The case has been to the state supreme court three times during this period. Chairman Gates was subjected to a ten day deposition and is expected to be on the witness stand four days. Conlin will also be allowed to use the well known 1988 Gates deposition taken by David Boises in another lawsuit against the company.

Conlin’s opening statement took six days to deliver. The defense then presented its opening statement. It’s reported that during Microsoft attorney David Tulchin’s opening statement, he said at one point: "No one in Iowa has been harmed by anything that the plaintiffs can show that Microsoft has done. The evidence will show that the price was not too high, that there is no overcharge." These two statements are good example of a communication principle regarding framing issues.

George Lakoff is a national expert on framing issues. He is a U.C. Berkeley professor of linguistics and cognitive science. He is best known for his work on how things are presented or framed can influence the reaction to them. (See my previous post October 25, 2006) Lakoff’s book "Don’t Think of An Elephant" and his other writings have been read by millions. He has also created an informative think tank website, the Rockridge Institute dealing with communication and framing.

The concept of framing is that how something is presented influences the reaction people have to it. Framing may involve slogans, catch phrases and metaphors which in turn influence the mental reaction people have to what was said. The concept has application to many areas of communication. For example, professor Elizabeth Loftus is a well known expert on memory and eyewitness testimony. Her writings describe how memory can be influenced by the manner in which the questions are framed by the police or counselor. The principles apply to public surveying. All public opinion researchers know that responses to surveys can be greatly influenced by the manner in which the questions are asked and the words used to frame the issue. The wording can dramatically change the response. Framing has also become an essential part of politics. For the Republicans, the leading experts on framing are Karl Rove and Frank Luntz. For example, the Bush administration has adopted a new frame to describe their need for a turn around in Iraq : "a new way forward" to replace "stay the course" and "cut and run."

Lakoff believes it is a fundamental rule of framing that "negating a frame evokes the frame." In other words, the first rule of framing is not to activate the other side’s frame. For example, if you tell someone not to think about an elephant, they can’t help themselves and will immediately think about the very thing you asked them not to think about. Lakoff points out that when Richard Nixon insisted "I’m not a crook" the nation immediately thought of him as a crook because Nixon’s negative frame triggered the very mental reaction he was trying to avoid.

The lesson for trial lawyers is to be aware of these principles in presenting their cases to the judge or jury. Lets apply the concepts to the Iowa defense opening statement,. Look at the statements "No one in Iowa has been harmed…" and "…the price was not too high and …there was no overcharge." When we apply the first rule of framing to these statements, that is: negating a frame, evokes the frame, we see the statements violate the principle. The principle would mean that jurors would mentally interpreted the statements as actually saying: "people in Iowa have been harmed…the price was too high and there was overcharge." That is just the opposite of what was intended. While I’m confident Mr. Tulchin delivered an overall excellent opening statement, these statements are an example the principle of framing. Trial lawyers especially should learn the rules of framing and be conscious of how they present issues to the judge or jury.