Framing Effects, Rhetorical Devices, and High-Stakes Litigation: A Cautionary Tale

Opposing lawyers frame the facts of a case to serve their client, craft leading questions, and exert pressure on the witness to go along with their desired answer. To counter this, counsel for the witness must anticipate this and prepare the witness to tacitly ask themselves before answering such questions: whether a frame is being employed?; and if so, they should respond in their own words, rather than in the terms put to them by the opposing lawyer. Courts might counsel themselves to employ similar caution when incorporating discussion taken from politics or related policy debate. They may not be able to answer whether language which is common in that external discourse is being used as a frame or rhetorical device. The problem of the self-referentiality of social systems or of the culture-specificity of language means that the judge may not fully appreciate the intended usage of terminology found in an external discourse including potentially as frames or tropes. However, the native character of communication also means that courts should at least be able to recognize whether or not familiar terms which are also being used externally are being used in the same sense the legal system recognizes.