Monday, February 8, 2010

Obama Lays A Health Care Trap

Obama said this weekend that he wants to meet with the Republicans in a televised negotiation to discuss health care. As a lawyer, I know what he’s doing, and the Republicans need to be very, very careful. This is a trap.

Many years ago, I was involved in a trial in federal court. I had a co-counsel with me at the time because we represented multiple plaintiffs. By our agreement, I did most of the trial, including the opening, and he handled some of the cross examinations and the closing. A closing is the argument that takes place at the end of the trial. The plaintiff’s attorney always goes first, with the defense attorney following. After that, the plaintiff’s attorney gets to present a rebuttal closing, but this is limited to responding to the points made by the defense.

What I didn’t know until after the trial began was that my co-counsel, who had only done defense work before, couldn’t frame an argument to save his life. . . his strength lay in tearing down the other guy’s argument. Unfortunately, since we represented the plaintiffs, we had to go first. That meant he had to put together an argument that told the jury why we had met the burden of proof.

As the time of the closing approached, it was obvious that he couldn’t do it. But I knew something about the defense attorney. I knew his type. He was a typical big firm attorney, which meant that he had an excellent pedigree, looked great in the suit, but was absolutely out of his league once the trial began. It also meant that he would methodically lay out his case in his closing, no matter what we did in our closing.

Hence, I told my co-counsel to forget the closing: “Just give a short, simple statement, and sit down. Let the other guy give his closing, let him lay out his case, and then get up and tear his presentation apart in the rebuttal closing.” He did, and it took less than twenty minutes for the jury to come back in our favor.

The reason this worked so well was that by focusing the entire closing on attacking the defense case, we subtly shifted the burden of proof onto the defense. In so doing, we basically led the jury to believe that they should rule in our favor if they didn’t find the defense’s case persuasive. Thus, even though the law said that we had to prove that we were right, the jury came to believe that we only had to show that the defense was wrong.

This may sound like an esoteric point or a distinction without a difference, but I assure it’s not. There are very powerful psychological forces at work when humans assess who has the burden of proof. We instinctively demand greater proof from the person who we view as needing to prove their case, and we demand significantly less from the person who appears to be arguing for leaving things as they are. By making it appear that the defense was the one trying to convince the jury, we made ourselves into the party asking the jury to “leave things as they are,” even though we weren’t.

To put this into non-legal terms, think about it this way. When your friends present you with a choice of “let’s go to restaurant X unless you disagree,” you are much more likely to end up at restaurant X than if they said “would you prefer restaurant X or Y,” and far more likely than if they said “let’s go to Y unless you really want to go to X.” This is because there is a human bias that favors leaving things as they are.

This is exactly what Obama is trying to exploit. He’s tried everything he can think of to sell his health care plan, and none of it worked. He talked about the need to cover the uninsured. . . no takers. He claimed it would save us billions of dollars in health care costs. . . no takers. He talked about history. . . no takers. He blasted the evil insurers and greedy doctors. . . no takers.

So now he is trying to shift the burden of proof to the Republicans. If he can get them to put forward their own plan, then he can poke holes in that plan and he can argue to the public that the Republicans have failed to present an adequate alternative. If he does this right, then he can frame the Republicans as the ones wanting a change and his plan as representing leaving things as they are. He will have done to the Republicans what we did to the defense attorney. Hence, this is a trap for the Republicans.

So how do the Republicans avoid the trap? First, they should have rejected his invitation:

“If Obama isn’t willing to start from scratch in a bipartisan manner, to do this right, then we aren’t going to provide him political cover as he crams a horrifically destructive bill down the throats of the American taxpayer.”
But they already agreed. So now they need to focus on avoiding giving him a target. One thing they could do would be to present a list of general principles rather than any specific ideas. For example:
“We need a plan that lowers the cost of health care for all Americans, that protects the uninsurable, and doesn’t harm our world class health care system, doesn’t drive doctors out of the profession, doesn’t close hospitals, and doesn’t leave millions of seniors out in the cold.”
But this runs the risk of looking like obstructionism. Thus, what I would recommend would be to prepare a list of specific proposals that few would object to. I would test these through a series of trial balloons to warm up the public before they are introduced and to weed out any that might cause a public backlash. Here are my suggestions:
• Granting a federal medical license to let doctors practice in any state.
• Allowing insurers to offer insurance across state lines.
• Increasing the size of medical savings accounts.
• Malpractice reform (as we outlined in CommentaramaCare) to cut medical costs.
• Allowing doctors to operate fixed price medical plans, like I mention in CommentaramaCare.
• Eliminating overlapping federal bureaucracy.
And if they need something “to save Medicare,” talk about possibly raising the qualification age for Medicare benefits to 70 in some number of years. But don't talk about anything painful or unpopular at this time, because that's what Obama needs.

Finally, whatever they do, they need to do two things. First, they need to repeatedly make it clear that Obama has the burden, and they need to emphasize that the third choice is to do nothing. . . to leave things as they are. I would recommend this:
“We should not do something that will destroy our medical system, raise all of our costs, wipe out Medicare, and bankrupt America just because the Democrats want to get a plan done before the election. We need to take our time and do this right.”
Secondly, they need to pound home in every sentence they say during this conference (no matter how rude it may seem) the words “Obama deficit” and “Democratic deficit,” and they must never let the public forget for even a minute that they have been called in to help clean up a Democratic mess.

That’s how I see it.


Tennessee Jed said...

I think your analysis is right on the mark. When I saw this ap story, I thought, he is trying get Republicans in for political cover. It frosted me that the guy who said "we won" and "the people that caused the problem need to get out of the way" can look in the camera and pretend he has "reached out."

I find it somewhat frightening that I don't have a lot of faith in the Republican congressional leadership to avoid the trap, however.

AndrewPrice said...

Jed, I know the feeling. They did say a lot of the right things, but they also accepted his invitation a lot too quickly in my opinion.

On the one hand, I'm glad that they are starting to come around to laying out an agenda (though they still won't). If they don't do that, then any victory in 2010 will be meaningless. But I'm concerned that the Republican default position seems to be to play into the Democrats hands.

A friend of mine used to call them the Lucy and the Football Party -- after Charlie Brown.

StanH said...

Surely to goodness our team can recognize a trap? I know…I made a funny! I did hear this AM that indeed the Republicans are willing for said televised conference, provided they start over. And on a purely political basis they can’t say an emphatic no, but like you be succinct, and do not allow the White House to reframe their lost narrative.

I’m not an attorney, but what you described is classic sales technique, knowing when to shut up, and not talk yourself out of the sale. The right has sold to America the dud that Healthcare Reform is, now shut up!

Writer X said...

The President hasn't been very smart about his handling of health care so far; do you think he's smart enough to lay this trap? While I like the idea of televised proceedings, I'm not confident that either party will turn it into anything more than a media-grabbing, speechifying event. But, like you, when the President made this grandiose announcement about televised joint negotiations, my first reaction was suspicion.

AndrewPrice said...

Stan, I have no doubt that there is a related/similar sales technique. I know many salesmen will try to get you giving your reasons against the sale at some point so that they can tear those apart, which presumably leaves you with no excuse not to buy the product -- the exact same kind of technique.

I heard them make a similar statement about wanting to start over, but the last I heard, they did agree to attend even if he doesn't do that. I hope they play this carefully. This is not the time to assume that he's surrendering and then run to his aid with a plan of hard choice.

Of course, I'm assuming that Obama will know how to exploit anything the Republicans say, which hasn't proven to be the case so far?

Tennessee Jed said...

Writer X - regardless of how smart or not smart Obama's people are on this subject, in politics, most of what you do or don't do turns out to be hit or miss by accident, e.g. you get lucky sometimes even if you don't deserve it.

Writer X said...

TennJed, given the President's track record, probably the more he's on television, the better. The more he talks, the less people trust him.

AndrewPrice said...

Writer X, In all honesty, he hasn't shown himself to be a very capable at anything so far -- not good at negotiations, not good at persuasion, not good at politics. Indeed, he's only recently mastered (actually "high school diploma'd" might be a better word for his level of achievement) the ancient political art of the trial balloon. So it's possible that he just stumbled upon this.

But then his strategy has now become to shift the blame to the Republicans, so this would seem to be a conscious decision and I think we need to assume he has done this with the express intent of shifting the blame.

AndrewPrice said...

Jed and X, I agree with both of you. I think we can't ignore the fact that he may have stumbled into this -- it presents a danger even if he only made it happen by accident.

But at the same time, he's gotten to the point that he turns people off. If the Republicans can appear to be sincere and helpful, and he comes across like a jerk, that will be the nail in the coffin for his support because it will rob him of his ability to lay blame on the Republicans -- his last weapon.

Writer X said...

Andrew, given how the President also likes to point fingers and shift blame, you're absolutely right. I wouldn't be a bit surprised. Let's hope the Republicans come prepared. I wish that I could say I felt confident about the Republicans' abilities too, though.

AndrewPrice said...

Writer X, Time will tell. This could be the first big test of their ability to govern in 2010? If they pass, they may make a return to power inevitable. If they fail, then who knows. Let's keep our fingers crossed.

Unknown said...

Andrew: Really enjoyed that. I paid my way through law school as a salesman. Truthfully, I learned more about "handling objections" there, and leading the customer/jury to draw the conclusion you want, than I did in law school. Most trial techniques courses were about the technicalities of running a trial, but far too little about human nature. You have to know your "product," but knowing your audience is just as important.

As an aside, I always checked out where my opposition in court was coming from. If his law school license said Harvard, or Yale, or Boalt Hall, and his letterhead had the name of two or three partners and fifty associates, I knew I had it won before we ever started.

As you said, Obama is setting a trap, and smart Republicans will use those techniques to make sure the hunter becomes the hunted. We have to summarize our "case," but we don't have to hand him the tools to beat us over the head. Put the ball back into his court, then go for the jugular.

AndrewPrice said...

Lawhawk, Thanks! I've had the same experience in the law. Law school taught technicalities, but nothing useful about how to persuade. And, like you, I've learned that the more prestigious the office or the school, the less prepared the attorneys seem to be to handle actual practice -- too scared to venture off the beaten path.

I think this could be a potentially huge opportunity for the Republicans if they handle it right -- they could easily show themselves capable of governing if they get this right. But if they get it wrong, they will breathe life back into a dead health plan. Let's hope they handle this well.

FB Hink said...

First point: The Republicans need to make dang sure they point out that it's okay to televise "negotiations" with the opposition but not the union thugs and drug companies that drive up the cost of health care.

Second: Obama has stated that lowering medical malpractice will only save $5 billion. Progressives only think in one dimension. Lowering the cost in one area creates ripple effects, lowering cost that allows more flexibility in lowering price.

AndrewPrice said...

Hink, Those are good points. This is a PR battle after all, so they should score any points they can -- and both left and right have been upset by Obama's secret negotiations with his union buddies. It's indefensible, and now they can effectively add hypocritical to the charge, so that's a great idea.

Off the top of my head, I think we concluded that med-mal reform could save around $66 billion a year (it's in the health care articles I wrote), so Obama is wrong. But more importantly, the public has come to believe that medmal reform savings could be vastly higher. So Obama has lost that argument already, and the Republicans should press ahead with it.

Tennessee Jed said...

Andrew - no less than Rush Limbaugh just called Obama's offer a trap. Maybe he read your article!

AndrewPrice said...

Jed, Thanks for the heads up! I'll have to send him an e-mail asking him why he doesn't comment at the site? LOL!!

JG said...

Andrew, I'm glad you're on our side! :) I just hope that those guys on the Hill are using their legal experience (aren't over 60%, or something like that, lawyers-turned-politicians) to arrive at this conclusion, rather than some sort of limp-wristed "why can't we be friends" stance.

FB Hink said...

Andrew, I'm sure I read your estimate and it spilled out of my head. My uncle was a well respected doctor. He was part of a MASH unit in Korea and could pinpoint ailments a mile away--a House before there was a House. He decided to retire at 65 instead of continuing till 70 as planned because of the cost of medical malpractice insurance. He had to subsidize his practice out of his retirement fund. It was an extremely painful decision for him to make. That was almost 20 years ago. I can't even imagine what it's like now and how many good doctors are now sitting on the sideline.

StanH said...

Jed beat me to my desk. Great minds think alike, Rush is beating the same drum.

AndrewPrice said...

JG, Thanks! :-) I'm happy to be on our side!

A lot of the people on the Hill are attorneys (I think you're right about the 60% estimate), but most of them didn't do trial work. Many went straight into politics, which means they never had to deal with figuring out how to sell horrible facts to a jury or how to negotiate the best deal for your client.

Still, I hope if they have any political instincts at all, Obama's offer should be setting off warning bells all over the place.

AndrewPrice said...

Hink, I know a good many doctors (I've defended some, sued a couple, and used the services of many others) and they are all suffering from the cost of medical malpractice insurance. What's really disturbing is that it's only a handful of doctors who are causing all the problems but everyone is paying the consequences.

I think the medical profession needs to get better about getting rid of those doctors, plus I think significant legal reform is needed -- I outlined some proposals in my CommentaramaCare posts if you're interested. Based on my own experience, I am extremely confident those proposals would work -- unfortunately, those are not generally the way legislatures are trying to handle the issue.

AndrewPrice said...

Stan, Thanks for telling us, even if Jed beat you to it! :-)

Unknown said...

Andrew: As sure as the sun comes up in the morning, The New Republic (house organ for the Democratic Party) has two articles today on how Obama can use the Republican strategy against them. They promote exactly the pitfalls that you warned about in your post.

AndrewPrice said...

That's good to know. Hopefully this will get enough airing that the Republicans will get the message pretty clearly.

Anonymous said...

I'll beat you at soccer Andrew however this article is brilliant.
If I needed an attorney you would get my vote.Your insight to this scum's tactics needs to be brought to the attention of the group that will meet with him in the arena.
You should offer to be their center forward and lead the team.

AndrewPrice said...

Anon, I have no doubt you would beat me at soccer! LOL! Thanks for the kind words. I'm glad you enjoyed the article. Let's hope that the Republicans play this very carefully!

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