Obama Lays A Health Care Trap

Obama said this weekend that he wants to meet with the Republicans in a televised negotiation to discuss health care. As a lawyer, I know what he’s doing, and the Republicans need to be very, very careful. This is a trap.

Many years ago, I was involved in a trial in federal court. I had a co-counsel with me at the time because we represented multiple plaintiffs. By our agreement, I did most of the trial, including the opening, and he handled some of the cross examinations and the closing. A closing is the argument that takes place at the end of the trial. The plaintiff’s attorney always goes first, with the defense attorney following. After that, the plaintiff’s attorney gets to present a rebuttal closing, but this is limited to responding to the points made by the defense.

What I didn’t know until after the trial began was that my co-counsel, who had only done defense work before, couldn’t frame an argument to save his life. . . his strength lay in tearing down the other guy’s argument. Unfortunately, since we represented the plaintiffs, we had to go first. That meant he had to put together an argument that told the jury why we had met the burden of proof.

As the time of the closing approached, it was obvious that he couldn’t do it. But I knew something about the defense attorney. I knew his type. He was a typical big firm attorney, which meant that he had an excellent pedigree, looked great in the suit, but was absolutely out of his league once the trial began. It also meant that he would methodically lay out his case in his closing, no matter what we did in our closing.

Hence, I told my co-counsel to forget the closing: “Just give a short, simple statement, and sit down. Let the other guy give his closing, let him lay out his case, and then get up and tear his presentation apart in the rebuttal closing.” He did, and it took less than twenty minutes for the jury to come back in our favor.

The reason this worked so well was that by focusing the entire closing on attacking the defense case, we subtly shifted the burden of proof onto the defense. In so doing, we basically led the jury to believe that they should rule in our favor if they didn’t find the defense’s case persuasive. Thus, even though the law said that we had to prove that we were right, the jury came to believe that we only had to show that the defense was wrong.

This may sound like an esoteric point or a distinction without a difference, but I assure it’s not. There are very powerful psychological forces at work when humans assess who has the burden of proof. We instinctively demand greater proof from the person who we view as needing to prove their case, and we demand significantly less from the person who appears to be arguing for leaving things as they are. By making it appear that the defense was the one trying to convince the jury, we made ourselves into the party asking the jury to “leave things as they are,” even though we weren’t.

To put this into non-legal terms, think about it this way. When your friends present you with a choice of “let’s go to restaurant X unless you disagree,” you are much more likely to end up at restaurant X than if they said “would you prefer restaurant X or Y,” and far more likely than if they said “let’s go to Y unless you really want to go to X.” This is because there is a human bias that favors leaving things as they are.

This is exactly what Obama is trying to exploit. He’s tried everything he can think of to sell his health care plan, and none of it worked. He talked about the need to cover the uninsured. . . no takers. He claimed it would save us billions of dollars in health care costs. . . no takers. He talked about history. . . no takers. He blasted the evil insurers and greedy doctors. . . no takers.

So now he is trying to shift the burden of proof to the Republicans. If he can get them to put forward their own plan, then he can poke holes in that plan and he can argue to the public that the Republicans have failed to present an adequate alternative. If he does this right, then he can frame the Republicans as the ones wanting a change and his plan as representing leaving things as they are. He will have done to the Republicans what we did to the defense attorney. Hence, this is a trap for the Republicans.

So how do the Republicans avoid the trap? First, they should have rejected his invitation:

“If Obama isn’t willing to start from scratch in a bipartisan manner, to do this right, then we aren’t going to provide him political cover as he crams a horrifically destructive bill down the throats of the American taxpayer.”

But they already agreed. So now they need to focus on avoiding giving him a target. One thing they could do would be to present a list of general principles rather than any specific ideas. For example:

“We need a plan that lowers the cost of health care for all Americans, that protects the uninsurable, and doesn’t harm our world class health care system, doesn’t drive doctors out of the profession, doesn’t close hospitals, and doesn’t leave millions of seniors out in the cold.”

But this runs the risk of looking like obstructionism. Thus, what I would recommend would be to prepare a list of specific proposals that few would object to. I would test these through a series of trial balloons to warm up the public before they are introduced and to weed out any that might cause a public backlash. Here are my suggestions:

• Granting a federal medical license to let doctors practice in any state.
• Allowing insurers to offer insurance across state lines.
• Increasing the size of medical savings accounts.
• Malpractice reform (as we outlined in CommentaramaCare) to cut medical costs.
• Allowing doctors to operate fixed price medical plans, like I mention in CommentaramaCare.
• Eliminating overlapping federal bureaucracy.

And if they need something “to save Medicare,” talk about possibly raising the qualification age for Medicare benefits to 70 in some number of years. But don't talk about anything painful or unpopular at this time, because that's what Obama needs.

Finally, whatever they do, they need to do two things. First, they need to repeatedly make it clear that Obama has the burden, and they need to emphasize that the third choice is to do nothing. . . to leave things as they are. I would recommend this:

“We should not do something that will destroy our medical system, raise all of our costs, wipe out Medicare, and bankrupt America just because the Democrats want to get a plan done before the election. We need to take our time and do this right.”

Secondly, they need to pound home in every sentence they say during this conference (no matter how rude it may seem) the words “Obama deficit” and “Democratic deficit,” and they must never let the public forget for even a minute that they have been called in to help clean up a Democratic mess.

That’s how I see it.