Dilbert on Donald: I'm Not Persuaded

Comment withheld

Along with many, the Donald Trump phenomenon fascinates me. He comes across as a bombastic, narcissistic demagogue, mostly (but not entirely) full of hot air and baloney. On the other hand, he was until recently the favorite of most Republican voters. Many political commentators have attempted to deconstruct the Trump phenomenon. Is his popularity the result of his personal characteristics? Or is it the result of a miasma in the political air that has infected Republican voters? (I’m happy to note the Democrats and sane people seem immune to the Trump airs.) However, one assessment of Trump that has caught my attention comes from Scott Adams, creator of the Dilbert comic strip.

Dilbert creator & hypnotist Scott Adams

Scott Adams wrote How to Fail at Everything and Still Win Big: Kind of My Life Story, a book that I enjoyed. (My review here.) In that book, Adams writes about many topics, but his distinction between goals and systems is worth the price of the book. But the book has much more than that. Adams is an open-minded and inquiring fellow, and he’s willing to try ideas and techniques to figure out what works and what doesn’t. Among the many practices he’s tried is hypnosis, and he finds it effective. I’ve been doing some reading on my own about hypnosis as a part of my interest in all types of persuasion, influence, and power. And while I don’t have any training in hypnosis, Adams does, and he writes about it in his book and in his blog. He defines hypnosis broadly, and like me, he’s interested more widely in persuasion. As a part of this interest, he’s been writing about Donald Trump. Adams describes Trump as one of the “Master Wizards” of persuasion (His Master Wizard—or Master Persuader—Hypothesis is an offshoot of his Moist Robot Hypothesis. Read his book or go to his blog for details.) In his ongoing commentary on Trump and the Trump presidential campaign, Adams entertains the possibility of a Trump landslide in the coming presidential election. By the way, Adams doesn’t claim that Trump would necessarily be a good president, just that he’s in a good position to win because he’s exhibiting the ways of a Master Wizard. I think that Adams is onto something, but I find Adams’s hypothesis has severe limitations.

In reading about hypnosis via The Rogue Hypnotist and Kreskin, as well having done some background reading on Milton Erickson, I believe that there are situations where conversational hypnosis can work. Also, there’s the whole topic of advertising and propaganda as a form of mass persuasion, which relates to hypnosis. Kreskin, for instance, claims there is no hypnosis in the sense of a pure trance, only suggestibility, and from what I’m learning, that’s probably an accurate characterization of what goes on. Kreskin reveals that in his shows, when he “hypnotizes” someone on stage, he makes a point of choosing a volunteer who is readily open to suggestion (which he’s learned to identify quickly). Some people are more much open and suggestible than others.

I believe that I’m on the less suggestible side of the scale. I’m WEIRD (Western, educated, industrialized, rich, and democratic) (courtesy of Jonathan Haidt), and I’m also a lawyer with over 30 years of experience in negotiations, hearings, trials, and appeals. In other words, I have a professionally trained crap detector. This is not to say up never been bamboozled (I have), but at least in the arena of a courtroom I know how to ask probing questions and deploy appropriate skepticism. This attitude carries over, at least to some extent, in other aspects of my life.

For instance, this skeptical-inquiring mindset, which is so handy in cross-examination, kicks on when watching a Republican presidential debate. The amount of free-flowing crap is immense. I'm not suggesting that the Democrats don’t dispense it, just that it's not the same magnitude of volume. Some people may accuse me of being close-mindedness, but I believe that reality has a well-established liberal bias. (Please take the statement with a large grain of salt as I stated it with tongue-in-cheek. Oh! How I love a good cliché!) Of course, someone will say that this is merely my liberal bias shining through, but I started my life as a Republican and only left that fold slowly and without rancor towards family, friends, and acquaintances that remained within the fold. (I learned in the most recent debate that I’m over three decades ahead of Ben Bernanke.) I’ve changed other beliefs and practices as well, and these changes didn’t occur as a matter of whim or some spooky, undue influence. In other words, careful thought and reason play a role in my life and can play a role in the lives of others. It can play a role in politics.

So the question becomes, “How much baloney can a candidate dispense and still garner a majority of the votes?” This a vital question because it goes to the viability of democracy itself. Some have defended democracy as good enough if people are smart enough to vote for their own interests. (I think Richard Posner makes this argument in Law, Pragmatism, and Democracy.) Of course, self-interest or organized group interests do carry significant (often inordinate) weight in political decision-making, but even granting that weight, many decisions aren’t compelled or even influenced by financial self-interest (narrowly defined). Most issues about cultural and ethics discussed in the political realm, such as gay marriage, abortion, and marijuana legalization, aren’t issues that affect the pocketbooks of most voters. Yet, many hold strong views on these topics. If those views are not informed by reason and inquiry, and not shaped by self-interest (narrowly understood), then how are they shaped? Visions informed by habit, fear, or hope quickly fill any void. In the arena of values (culture war) politics, we see and hear political pitches aimed at fundamental beliefs, fears, and hopes. (Alas, fears trump—pun intended—hopes as primary motivators.) In this arena, the candidate with the best skills for suggesting—without arguing—for a position will probably come out ahead. But can the candidate who fools a lot of the people a lot of the time win over enough of the voters?

Scott Adams suggests that Donald Trump is bluffing about immigration to establish an opening negotiating stance, or that Trump’s actions are the opening act in a three-act play will bring about a happy ending for both the protagonist (Trump) and illegal immigrants. Tragedy will turn to Romance. Maybe. Adams may argue (and I haven’t seen this yet), that candidates throughout American history have campaigned saying one thing and then doing quite another. Sometimes this is a matter of duplicity, sometimes the result of a change in circumstances, and sometimes the result of a genuine change of beliefs. However, it must remain a fundamental tenet of electoral democracy that we believe that a candidate will act consistently with what the candidate says during the campaign. When this doesn’t happen, such as Nixon’s pledge to “Bring Us Together”, it causes a profound rend in the body politic. Thus, the most fundamental question becomes one of the degree of trust we can place in a candidate to do what the candidate says he will do. Alternatively, as some voters tacitly suggest, should we grant a candidate carte blanche upon entering office? Most voters do this by not paying any attention to candidates. They base their choice on the flimsiest of reasons, such as whether the voter would like to sit down and share a beer with the candidate (typically men) or whether the candidate would “keep us safe”.

Trump reminds me of the former Italian leader, Silvio Berlusconi and the current Russian president Vladimir Putin. Both of them were elected leaders, with Berlusconi often playing the clown and accomplishing very little. Putin is quite severe, actively increasing the power of the state and pushing a nationalist agenda. Other elected leaders who provide a negative role model are Hitler and Mussolini, both of whom came to power through electoral process (they both immediately threw overboard after having gained power). Note! I’m not saying the Trump is a Hitler and a Mussolini. I’m only citing them as examples of the efficacy of some types of political rhetoric and persuasion. Hitler was able to persuade a many in the German nation to follow him. Of course, he killed or imprisoned those whom he could not persuade. Persuasion that draws upon nationalistic rhetoric, triumphalism, and fear, can—in certain circumstances—prove extremely persuasive. No matter how persuasive Trump may be to some, to support him for his persuasive abilities (if they do hold up enough to get him even nominated), is not an indicator of this fitness for office. (And, again, Adams has not endorsed Trump.)

A general reservation that I hold about Scott Adams’s Master Wizard Hypothesis is that it doesn’t address democratic eloquence. For instance, the current incumbent two-term president, Barack Obama, is often quite eloquent in formal speeches, and quite measured in his interviews. In rhetorical style, he’s the anti-Trump. And so for that matter is Dr. Ben Carson, Trump’s current chief rival for the Republican nomination. Despite significant obstacles, American voters have twice elected Obama as president of the United States. (And remember wooden Al Gore outpolled the affable George W. Bush.) If we look throughout American history, the greatest and most effective presidents, Lincoln, Washington, Franklin Roosevelt, Theodore Roosevelt, Thomas Jefferson, are all displayed a high level of verbal intelligence and eloquence. In the modern era, Theodore and Franklin Roosevelt could speak movingly to large crowds, but their off-the-cuff bombast – well, I can’t think of any examples of that. The era of presidential debates started in 1960 with Nixon and Kennedy. Neither of those two candidates displayed the verbal sparring and insult that we hear now between the Republican candidates. In fact, both were courteous and respectful toward the other. While not always the case, the verbally eloquent and articulate presidential candidate defeats the opponent with a greater amount of bombast, even those who may have used some of the techniques of hypnotic suggestion that Adams find so empowering in Trump. From what I can discern from my study, hypnosis works in a significant way when the receiver wants to be open to suggestion. We may thus conclude that many Republican voters want to receive the suggestions the Trump (and the other Republican candidates) want to purvey.

All this may prove moot, as some national polls, as well as most recent Iowa poll showed the Ben Carson is now ahead of the entire field. Mild-mannered Dr. Ben Carson, another anti-Trump. Or is he just more subtle in his choice of language and staging? It appears that people are attracted to Carson precisely because of his mild, understated manner. How does this work with the Adams’s Master Wizard Hypothesis about Trump?

In one blog, Adams notes that someone measured Trump as speaking at a fourth-grade level. Adams thinks that’s a part of Trump’s communication wizardry. Any effective speaker must know the audience and match the appropriate linguistic register to that audience, but how low should you go? For instance, listen to Obama talking to and about “folks” when he’s in a small group or informal setting and compare that to the more literary register of his formal speeches. Or think of Lincoln telling humorous tales and bawdy jokes to his friends sitting around a cracker-barrel and then penning the immortal words of the Gettysburg Address and his Second Inaugural Address. Did Churchill bring the English language to war by using vague phrasing at a fourth-grade level to rally the British people in their darkest hour? And that later became their finest hour in part because of his eloquence. All of these speakers used powerful images and sophisticated language that resonated with widely held beliefs shared by their audiences. So does Trump do this so well? Has the American electorate been dumbed-down? I’m not persuaded yet.

Based on my years of study and practice of persuasion, I don’t believe that there is a Holy Grail of persuasion. There are many little things that you can do to increase your odds of success, but nothing guarantees success. We are subject to the whims and caprices of that most implacable of gods, the Audience. Even the Master Wizard Gerry Spence, who’s Win Your Case: How to Present, Persuade, and Prevail--Every Place, Every Time, that Adams has read (if it follows Spence’s earlier How to Argue and Win Every Time I’ve read) says you can’t win every time—at least not in the sense of getting everything you hoped for through persuasion. (Spence’s titles go in for hyperbole, but he is very persuasive and credible.) You have to choose your battles as best you can. I believe that Trump’s success to date is more a function of the hopes and fears of his audience. Or more accurately, their hopes that he can deliver them from their fears. I believe that this Washington Post article, assessing Trump’s appeal as a function of his audience provides greater explanatory power about Trump’s success to date than does Adams’s Master Wizard Hypothesis.  

Thinking Like a Lawyer & Antifragility

Thinking like a lawyer is what law school is supposed to be all about, and to some extent, it is. Now many people, like Daniel Pink or Gerry Spence, agree that is true--and woe to us all. And to some extent, that also is true. Word nitpicking, “word gravel” (Spence), and endlessly argumentative perspectives (for the purpose of delay or battle by attrition) are all too common in the legal profession. But I want to emphasize a more positive way of thinking about this topic. In fact, I want to consider legal thinking in the context of how lawyers tell laypeople to think about the legal issues put to them, because in this case—especially with juries—we have to put our perspectives in terms that everyone should be able to grasp. 

The Legal System, Torts, and Negligence

I’ve thought about this because I’ve recently finished Nassim N. Taleb’s Antifragile, his intriguing (further) consideration of how risks can affect us. Because I will review the work in a separate post, I won’t go on at length here about the many aspects of the book, but I do want to point to some salient features. One, following a pattern that NNT set forth in his two previous books, Fooled by Randomness and The Black Swan, he favors practitioners over academics. He preaches empirical skepticism from a linage coming starting with Menodotus of Nicomedia through Sextus Empiricus down to the present. He criticizes much of academic medicine because of its rationalist (as opposed to empirical, skeptical) mindset. The mindset that he criticizes says, “If we can do it, we should”, which leads us to think that we can fix a problem by doing this or that without consideration of system effects. He offers a number of examples that make sense. 

However, one thing that he doesn’t address much is lawyers and the common law legal system.* Perhaps it’s because he’s only been exposed to contract-drafters and securities regulators, the sorts of attorneys who attempt to extinguish risk and minimize every manner of Black Swan. Unfortunately, he doesn’t address the common law world of tort laws, for instance. Tort law developed in the U.S. in part as a response to increasing industrialization and commercialization. In short, we had more not governed by contract or status. We had a number of more casual but often consequential interactions that required the law to decide who lost and who gained in such interactions. For instance, who paid what to whom if farmer Brown’s cow was on the railway track and was struck by the train? (Such collisions could damage the train, but the cow usually came up the worst; locomotives have cowcatchers, but cows don't have train catchers.) With the advent of automobiles, all of this became much worse. Now autos could run into trains and to each other. So how did the law respond? 

Following a pattern laid down in the British Isles before the American Revolution, the courts laid down principles on a case-by-case basis, using prior decisions as precedents to establish the norms for later courts and parties to follow. This system dealt with the practicalities of the law at the level of actual litigants and in light of practical necessities. This should make NNT happy: practitioner and practice-based guidelines established according to need. Of course, sometimes the system seemed too overgrown and complex and needed some rational pruning (my Garden metaphor again!), but generally, the rationalization process was a distillation and not a complete overhaul. Some standardization occurred, but not a huge amount. One state could look at what another was doing and could adopt or reject a practice as it saw fit. What works in Iowa might not work in California or New York, but it might prove quite useful (and enlightened) in Nebraska. 

Consider the legal concept of negligence, from the realm of torts described above, which attempts to weigh whether a loss suffered by an injured party (plaintiff) should shift to another party when the plaintiff believes the defendant should have acted differently to avoid the plaintiff’s loss. The plaintiff can shift the loss (obtain a judgment for damages) to the defendant, if the plaintiff can prove by a preponderance of the evidence (more about burdens and evidence later in this essay) that defendant should have acted to prevent the harm from occurring.

We say that defendant had a duty to act to prevent the harm from occurring by acting as a reasonable person would act under like or similar circumstances. The logic of negligence most widely known in legal circles comes from the decision of Judge Learned Hand in U.S. v. Carroll, a case about a barge that broke loose and sank after a tow ship accidentally severed a line anchoring the barge to a pier. The U.S. government, owner of the barge, sued the tow ship (Carroll) for the damages caused, alleging negligence. Justice Hand established a “calculus” of negligence that has remained quite influential throughout the years:

         

[T]he owner's duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B < PL.

To expand on this, one can state: If (Burden < Cost of Injury × Probability of occurrence), then the accused will not have met the standard of care required. If (Burden ≥ Cost of injury × Probability of occurrence), then the accused may have met the standard of care.

This classic formula has served at the touchstone of thinking about negligence since it was written in the Carroll decision back in 1947. When you think of the issue in this manner, it makes a lot of sense to formulate things this way. Analytically, it’s very clear and concise. Of course, in practice, it’s much messier. Indeed, as any experienced tort lawyer will tell you (or the Iowa Rules of Appellate Procedure for that matter), questions of negligence are normally decided by applying the principles to the facts of the case, and what does or does not constitute negligence normally lies with the fact-finder, which is usually the jury. Thus, predicting what is or is not negligence becomes difficult because the issue is by definition fact and context-specific; indeed, juries bring in attitudes from their communities that vary over time and place. For instance, what juries accepted as negligence 30 years ago might be rejected today because of changing community attitudes (from business interests campaign against tort claims brought against them) or by distance (how a jury might dispose of a claim can vary from place to place (and even jury to jury). All of this remains decentralized and ad hoc, thus allowing change over time without recourse to the political process (for the most part; much of so-called “tort reform” is an instance to trying to freeze the system to limit damages set by jurors for injury awards). To the extent juries aren’t limited by new reforms, this most democratic (in both its good and bad manifestations) process allows some predictability overall while allowing for change and individual variations over time and place. This, to me, seems a workable system, for all of its faults, which I’ve come to know well in the course of over 30 years of practice. 

Burden of Proof

Another key area where I think that the law has some useful insights to offer all of us concerns the burden of proof. Specifically, who has the burden of proving (or disproving) a proposition (e.g., “Jerry was negligent and this injured me”) and how much proof is necessary for an actor (the court system) to accept that the proposition as proven sufficiently to act upon it (e.g., order Jerry to pay Sandy money for the harm caused by his negligence). 

Generally speaking, a party seeking to establish a proposition has the burden of proving it. In other words, if you want the court to order something, such as payment of money damages or to order a person to refrain from acting via an injunction, you must prove the necessary elements. The standard of proof is the amount of proof necessary to establish a proposition sufficiently for a court to act upon it. In most civil cases in most jurisdictions, this standard is a preponderance of the evidence; in criminal cases, beyond reasonable doubt (and with various other permutations available for less common cases). For instance, for me to obtain a judgment against you for ten million dollars, I need only prove the legally required facts by a preponderance of evidence; however, if the State wants to send me to jail for a day, it must prove all of the legally relevant facts beyond a reasonable doubt. Criminal punishment, including fines, requires a higher standard of proof than a recovery of any sum of money in a civil action.

Think about this in light of the daily decisions that you make. Do you need to know something “beyond reasonable doubt” or by a “preponderance of the evidence”, or perhaps “maybe” works. It depends mostly on the magnitude of the consequences of the decision. Will I like a new ice cream flavor? “Maybe” might provide a sufficient burden of proof for you to try the new flavor. Others may have a higher standard; for instance, another person might believe that she probably will not enjoy the new flavor more than her established favorite (which is chocolate, of course). 

So how skeptically and conservatively (as a matter of judgment, not politics) we may choose to act becomes (to some extent) a function of the magnitude of the risk involved. Let’s take global climate change as an example. On one hand, NNT argues that we are poking Mother Nature with a stick and that we shouldn’t. ("Burden of evidence: The burden of evidence falls on those who disrupt the natural, or those who propose via positiva policies." Antifragile, 429.) The burden, because of the huge consequences if human conduct is upsetting the global climate structure must be upon those who want to maintain the status quo (a via positiva if there ever was one!); i.e., those who don't want to take active steps to counter any human-caused climate change. (Technically, we get into burden-shifting here. In other words, if the plaintiff provides some evidence of proposition A, then the defendant can offer evidence to rebut the proposition, and then the plaintiff must have enough evidence to respond to the defendant’s contrary contention. Plaintiff has the ultimate burden, but it switches back-and-forth during the course of the trial.) 

Blogger, self-experimenter, and UC Berkley-Tsinghua psychology professor Seth Roberts, on the other hand, is a climate change denier. (He will more likely call himself a skeptic and attempt some burden-shifting of his own, but given what I’ve read him to say about this, I think he belongs in the denier camp because of his displays of confirmation bias when considering this the issue.) Like others I’ve read recently, persons I otherwise can find quite persuasive and intelligent, like Roger Scruton and Deirdre McCloskey, suggest that we’re overreacting when we say that we need to change. They argue, I think, that there is no Black Swan (or White Swan, for that matter) of risk, that human-caused global climate change is all a mirage. Roberts and the others argue in effect: 

I know I might be the turkey and they say that there’s this Thanksgiving Day that might terminate my well-being with extreme prejudice, but how do I really know that this will come to pass? I know that I hear the farmer sharpening long, metal blades, talking about this upcoming holiday, and looking longingly at me, but really, this might all be something else. We shouldn’t take any action unless we know for sure that this Thanksgiving thing that you think is coming is proven by  . . . ." 

What, an actual occurrence? This strikes me as a bit late, but that seems to be their preferred position. 

I mention this, because I’ve made lawyerly arguments on Roberts’s blog when this comes up, but my points about burdens and standards of proof don’t elicit a response. I admit that I’m not sure about human-caused global climate change since I don’t have the credentials to independently verify and interpret the data (as I don’t for most of life’s biggest questions). But from what I do know is that if those arguing that we humans are causing global climate change and that there are things that we should be doing to alleviate its impact (it’s beyond stopping now, according to most), then we darned well ought to do all we reasonably can given the magnitude of the risks. (Refer back to the negligence calculus for a refresher on how to think about this.) The climate change deniers don’t seem to want to respond to this. The changes will cause big dislocations (to put it mildly) whether we choose to make changes ourselves or we choose to allow Mother Nature to make them for us. In other words, either our economy changes or Earth's climate changes. 

There are those who might argue that while we’re causing global climate change, we’ll innovate our way out of the pickle. “We’ve done it before and we can do it again and we can do it again.” Maybe. (See Thomas Homer-Dixon’s The Ingenuity Gap about the limits of our ability to innovate our way out of climate change.) However, t this strikes me as a very big gamble, and frankly, one I'd not like to bet upon (I've too much to lose).

All of this may seem quite discursive, but I hope that I’ve made a point that at least in some ways, “thinking like a lawyer” actual can prove useful, albeit demanding. (We don’t like to expend the energy that thinking requires of us, so we dodge it whenever we can). Thinking like a lawyer may not allow us to see Black Swans, but because of the turbulence that lots of everyday decisions in law and business inevitably create, so long as they are disbursed and have some degree of independence should allow a measure of antifragility to arise.

 
* While reviewing Antifragile to make some notes I did find the following, which qualifies the statement made above. I will be looking for any other references to the law as I continue my review: 

The same bottom-up effect applies to law. The Italian political and legal philosopher Bruno Leoni has argued in favor of the robustness of judge-based law (owing to its diversity) as compared to explicit and rigid codifications. True, the choice of a court could be a lottery—but it helps prevent large-scale mistakes. (90)

I argue my effort has been to further elucidate this passing remark.

Scoring Points: A Review of Point Made: How to Write Like the Nation's Top Advocates by Russ Guberman

The point of Point Made can be easily summarized: good legal writing differs little from good writing in general, especially in the particulars of getting to the point with pith and clarity. Guberman shows and tells us this through myriad examples. Indeed, I think that one has to read this book in small bits, otherwise it suffers from the sins that it criticizes: too much quotation! However, as a "how-to" book with a lot of models, it can prime the brain for a better effort. Most legal writing is, in the memorable words of Gerry Spence, "word gravel". Younger lawyers, especially, seem to want to hide behind nondescript words and phrases, attempting to hide their advocacy. As these models demonstrate through Guberman's helpful classifications and his own pithy descriptions, legal writing needn't prove so awful. If you do write legal briefs (or memos), this book may not be the first I'd recommend (probably one of Bryan Garner's would gain that nod), but it would make the cut for helping develop these crucial skills. 

Twofer: Presentation Zen on Dr. Brene Brown

Garr Reynolds @ Presentation Zen and in his books has some very important things to say about communication. In this particular entry, you get a double treat because he embeds a TED Talk by Dr. Brene Brown, professor of social work. I'd not heard of her before, but she made an excellent presentation. Interestingly, she reminds me of themes that famous trial lawyer Gerry Spence preaches in his teaching: vulnerability and communicating from the heart. Not very lawyerly by most peoples beliefs, but in fact, as Spence's success demonstrates, it's how one connects with others. Anyway, both Reynolds and Dr. Brown are well worth the time and effort.