Changing the Subject

From time to time, every experienced defense lawyer is faced with a case that is troublesome. The facts and evidence simply aren’t on the side of the defense. What to do?

First, it's a good idea to speak to the jury in broad abstractions. Discuss the law, the need for the prosecution to prove their case beyond a reasonable doubt, the necessity to keep an open mind … who can argue with those abstractions?

Second, and far more important, when it comes to the facts, change the subject.

In an op-ed piece in USAToday , Speaker Nancy Pelosi and House Majority Leader Steny Hoyer act like beleaguered defense attorneys, defending proposed health care legislation.

They begin by discussing broad abstractions in the most reasonable language:

We believe it is healthy for such a historic effort to be subject to so much scrutiny and debate. The failure of past attempts is a reminder that health insurance reform is a defining moment in our nation's history — it is well worth the time it takes to get it right. We are confident that we will get this right.

Mom and apple pie. I couldn’t agree more.

But rather than moving immediately into cogent arguments that support their side of the debate, they change the subject, accusing those who disagree with them with nefarious motives:

However, it is now evident that an ugly campaign is underway not merely to misrepresent the health insurance reform legislation, but to disrupt public meetings and prevent members of Congress and constituents from conducting a civil dialogue. These tactics have included hanging in effigy one Democratic member of Congress in Maryland and protesters holding a sign displaying a tombstone with the name of another congressman in Texas, where protesters also shouted "Just say no!" drowning out those who wanted to hold a substantive discussion.

So … “debate is healthy” according to the defense, but it represents an “ugly campaign … to misrepresent the health insurance reform legislation, [and] to disrupt public meetings and prevent members of Congress and constituents from conducting a civil dialogue."

The classic defense strategy – change the subject. In this case, when the facts and the evidence don’t support your position, demonize those who disagree.

The House Democratic leaders then go on to present their “facts.” Here’s a summary:

The first fact is that health insurance reform will mean more patient choice. It will allow every American who likes his or her current plan to keep it. And it will free doctors and patients to make the health decisions that make the most sense, not the most profits for insurance companies.

The House Democratic leaders may believe the their plan will lead to more choice, but they cannot provide evidence that refutes the legitimate argument that government option will push many companies to abandon their own plans and dump employees into the government plan. Over the long term, there is absolutely no evidence that choice will not be improved and clear indications that it will be curtailed.

Reform will mean stability and peace of mind for the middle class. Never again will medical bills drive Americans into bankruptcy; never again will Americans be in danger of losing coverage if they lose their jobs or if they become sick; never again will insurance companies be allowed to deny patients coverage because of pre-existing conditions.

The vast majority of middle class Americans have employer-provided health coverage, and only a tiny percentage is driven to bankruptcy because of health care costs. Should we overhaul the entire system with unproven and costly “fixes” to correct these shortcomings, or should we consider incremental reforms that might eliminate the problems without bankrupting the country?

Reform will mean affordable coverage for all Americans. Our plan's cost-lowering measures include a public health insurance option to bring competitive pressure to bear on rapidly consolidating private insurers, research on health outcomes to better inform the decisions of patients and doctors, and electronic medical records to help doctors save money by working together. For seniors, the plan closes the notorious Medicare Part D "doughnut hole" that denies drug coverage to those with between $2,700 and $6,100 per year in prescriptions.

Hmmm. The Congress’s own CBO indicates that there will be no healthcare saving under existing proposed legislation – none. In fact, costs will increase by $1.4 trillion over 10 years and more after that.

If Pelosi and Hoyer want to argue their case on its merits, the first thing they should do is refute the CBO’s findings. They can’t do it, so they suggest that removing the “donut hole,” instituted to keep prescription costs somewhat manageable, will somehow lower costs. How? They choose not to say.

To date it appears that the American public isn’t buying the strategy of keeping the abstraction level high, and when challenged, changing the subject. But that might change. The jury is still out.