Bottom line: Thanks to “anchoring,” attorneys and clients who are able to engage the Court of Public Opinion before their adversaries do get to frame their legal disputes in ways that make it difficult for those adversaries to overcome.

If you’ve done any reading and research about human psychology and persuasion, you’ve surely come across the concept of “anchoring.”

Anchoring is the cognitive bias responsible for the phenomenon where when we as humans hear information about something for the first time, that information tends to have a disproportionate effect on our decision-making and our perceptions of that thing moving forward. 

A classic example of this is anytime there’s a negotiation over price, the first number that’s thrown out during that negotiation is likely to be the price or 
the number that the parties are going to be working off of. 

So, for example, if you and I are engaging in a transaction to buy a car and I throw out $3,000 as the starting price, that’s very different then if you had thrown out a price of $500.

This happens often in the Court of Public Opinion, but it’s very subtle. 

It tends to happen more times than not in politics. 

You may recall when Obamacare was being debated, there was a Republican talking point about “death panels.” Democrats had to fight back against the term and the nasty visual that “death panels” comes with. Even though it was a term created by Sarah Palin with virtually no basis in reality, the term stuck in the Court of Public Opinion. Because Republicans and other Obamacare opponents framed a supposed aspect of the legislation before Democrats could, Democrats were forced to play catch up regarding that term and what it purportedly was referring to.

When you are an attorney representing a client who is either wanting to get publicity for a case or who has been the subject of bad publicity about a case, you must be cognizant of anchoring. 

The way that attorneys can take advantage of anchoring is by framing the lawsuit and framing the legal dispute in the way that’s most favorable to their clients.

Typically, plaintiffs’ attorneys and prosecutors have a leg up here. 

They generally will dictate the news cycle regarding a lawsuit or a case. Obviously prosecutors and plaintiffs’ attorneys typically tend to file the 
first documents in a court proceeding. Thus, when media outlets report on those initial filings in a proceeding, they tend to repeat those allegations word for word.

So when you’re a plaintiffs’ attorney or you’re a prosecutor, clearly the way that you frame the case in your court papers is going to have some “legs.” It is going to be the starting point for the defendants to have to rebut and fight back against. 

If you’re a defense attorney, whether on the civil or criminal side, anchoring and framing is important for you to understand. What you need to do in a high-profile case involving your client is begin to turn the story around and reframe the alleged wrongdoing or reframe the entire legal dispute in a way that is more favorable to your client.

You see this play out sometimes in high-profile cases of someone allegedly engaging in wrongdoing.

Criminal defense attorneys will label prosecutions as overly aggressive, or label the case as an improper attempt to criminalize what is purely commercial behavior.

Civil defense attorney sometimes attempt to reframe a litigation as a 
copyright troll or a patent troll seeking to badger law-abiding businesses. Or they will accuse plaintiffs’ attorneys of filing frivolous lawsuits that are meritless. These are attempts by civil defense attorneys to “flip the script” and to try to reframe the case. 

You as an attorney representing clients need to be thinking about how you can anchor certain ideas in the Court of Public Opinion about your client’s high-profile litigation or legal dispute that is being covered in the media. 

You should be thinking about how you can constantly anchor and reframe the litigation or legal dispute to cast your client in the most favorable light. 

The way that a lawsuit or legal dispute is framed from the get-go — anchoring — will tend to dictate how it’s perceived for the length of the litigation. 

Attorneys need to be thinking about how to position and frame their clients’ legal disputes so as to anchor those legal disputes in a particular way in the Court of Public Opinion. By doing so, they will help plant a favorable perception of their clients (and of those clients’ positions in those disputes) in the minds of reporters, judges, opposing counsel, and arguably most importantly, potential jurors.

Bottom line: Thanks to “anchoring,” attorneys and clients who are able to engage the Court of Public Opinion before their adversaries do get to frame their legal disputes in ways that make it difficult for those adversaries to overcome.

Wayne Pollock is the founder and managing attorney of Copo Strategies in Philadelphia, a national legal services and communications firm. Attorneys and law firms enlist Copo Strategies to engage the media and the public regarding their clients’ cases (to help resolve those cases favorably), and to engage the media, referral sources and prospective clients regarding their firms (to help bring new client matters in the door). Contact him at waynepollock@copostrategies.com or 215–454–2180.