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Framing the Debate

Monday, 12 October 2015

by Brady Brammer, JD MPA

I once had an opposing counsel that would file motion after motion—each of which had the same introduction to the case and all of them involving the horrible atrocities of my client. While annoying, this is not an uncommon litigation tactic. It was his way of “framing” the litigation. The same tactic is common with presidential candidates which frame their campaigns and their opponents both positively (see Reagan’s “City on Hill”) and negatively (see Romney’s 47% gaffe). In fact, it is one of the key ingredients of rhetorical skill in our attempts to construct a point of view.

Just as the frame of a house dictates the structure of the walls and roof line of a home, the way in which we frame our arguments influences the reception of our evidence by the jury or judge. If the frame is not appealing or if the evidence does not fit within our frame, our arguments may be disregarded.

There is a lot out there on the topic, but I wanted to focus on the idea of “gain framing” and “loss framing.” To do so, consider the following scenario and choice:

PROBLEM: a large car manufacturer has recently been hit with a number of economic difficulties. It appears that it needs to close three plants and lay off 6,000 employees. The vice president of production, who has been exploring alternative ways to avoid the crisis, has developed two plans.

Study No. 1
  • Plan A will save one of the three plants and 2,000 jobs.
  • Plan B has a one-third probability of saving all three plants and all 6,000 jobs, but has a two-thirds probability of saving no plants and no jobs.
What would you choose? Typically, 80% choose Plan A. Now, consider a subsequent study:

Study No. 2
  • Plan C will result in the loss of two of the three plants and 4,000 jobs
  • Plan D has a two-thirds probability of resulting in the loss of all three plants and all 6,000 jobs, but has a one-third probability of losing no plants and no jobs
What would you choose (assuming you hadn’t just read about Study No. 1)? Typically, 80% chose Plan D.

--Decision Analysis for Management Judgment by Paul Goodwin and George Wright

You likely noticed that Plan A & C are substantially identical in result and both involve a fixed outcome (i.e. no “probability” of an event). You know what you are getting. You also probably noticed that Plan B & D are also substantially identical in result and both involve a “probability” of an event. But the big question is this: If A & C are substantially identical, why did 80% choose A in the first study and only 20% chose C?

Here is the interesting fact: When debating a gain or positive impact, most people are naturally risk averse. When considering a loss or negative impact, most people are risk takers. In other words:

Positive Framing → likely to choose the less risky option.
Negative Framing → likely to choose the riskier option.

Why does this matter? In every case, you are offering options to the trier of fact. If the choice you are advocating for is conservative in nature, your “frame” should be positive (gain, keep, save, build, etc.). If the choice you are advocating is riskier, your “frame” should be negative (loss, lose, damage, destroy, etc.).

This information is made available by Spaulding Law for educational purposes only and not to provide legal advice. By using this website, you understand that there is no attorney-client relationship between you and Spaulding Law, unless you have entered into a separate representation agreement. This information should not be used as a substitute for competent legal advice from a licensed professional attorney.

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