There is a well-known principle in communication circles, first expressed by cognitive scientist George Lakoff: “When we negate a frame, we evoke the frame.” It means that even when we try to deny a specific attack against us, when we use the same terms, we end up giving space and power to that attack. The idea, expressed in Lakoff’s book Don’t Think of an Elephant is built on the demonstrated tendency for our unconscious mind to grasp onto an offered association even when that association is being rejected.
The classic example is former President Richard Nixon’s statement that, “I am not a crook.” He can deny it, but now we’re still thinking of him in the same category as “crook.” In a more recent example, conservative activist Mike Lindell was being deposed in a defamation lawsuit, and completely lost his cool after the attorney cast aspersions his “My Pillow” product, shouting “They’re not lumpy pillows!”
That case had nothing to do with pillow quality, but in litigation, there is often an actual need to deny whatever bad thing the other side is projecting against you. Your credibility might depend on rejecting the negative frame the other side is trying to place around you. You want to convey that you’re not “greedy,” “careless,” or “dishonest,” but you also want to do so without sounding defensive and without further activating the same associations you’re trying to negate. In this post, I’ll share some practical ways to do that.
Don’t Activate Bad Frames, Reframe Instead
The advice from Lakoff is to avoid using the other side’s negative terms: “Avoid repeating the charges! Instead, use your own words and values to reframe the conversation. When journalists protest that they are ‘Not The Enemy,’ they should remember how well ‘I am not a crook’ worked for Nixon.” The better course is replace the other side’s bad frame with your better frame. Journalists should emphasize that they’re on the side of truth. Nixon could have emphasized that he followed the law (if that were the truth).
In creating your messages for discovery and trial, the same principle applies. State it in the positive: Don’t say “it isn’t about greed,” but do say “it is about justice and being made whole.” Don’t say “We weren’t careless,” but do say, “We took every reasonable precaution.” Don’t say, “He wasn’t dishonest,” but do say, “He told the truth.”
There are two specific settings where it is important to avoid the negative frame.
In Jury Selection
Jury selection is different than the other messaging stages of trial because you are trying to find and excuse those jurors who would be less fair to your clients. You can’t afford to fully avoid the negative frames because you are trying to determine who holds onto those frames. Still, it is important to conduct a targeted examination in order to expose the less favorable jurors without giving undue emphasis to these negative frames. A voir dire approach I’ve demonstrated, the Pivot, for example is based on using strategically-phrased hand-raising questions (Who believes…) to identify a minority of jurors with less favorable attitudes and experiences, while reserving your open-ended follow up questions (Why? Tell me more about that…) for those in a majority on the more favorable side of the frame that is helpful to your side.
In Testimony
During examination in deposition or trial, witnesses can face a strong impulse to deny a negative conclusion or association they’re being handed by counsel for the other side. And sometimes, of course, that impulse to negate is important. To avoid looking evasive, it is necessary to answer directly, but to avoid activating the other side’s framing, it is important to use your own words.
For example, counsel for the other party might ask a doctor defendant, “So, you skipped that particular diagnostic test, correct?” Instead of a defensive, “No, I did not ‘skip’ it…” it is better to respond, “No, I followed the protocol, which includes other steps rather than this test.“
More broadly, attention to language and to framing at all pretrial and trial stages, including openings and closings, is important. The task is not just the logical one of deciding what frames to promote and reject, but also the psychological steps in taking care with what is being evoked and reinforced.
Image credit: Shutterstock, edited by the author, used under license
