Third post in our series "Gaslighting and Litigation:" how to respond to opposing counsel "gaslighting" during oral argument

In parts one and two of our series on Gaslighting and Litigation, we discussed the definition and prevalence of "gaslighting" and posited "gaslighting" tactics from opposing counsel:

An example might be an appellate argument about a case dismissed following a challenge to the pleadings, with the primary issue being whether the main cause of action pleads facts showing there is an exception to the statute of limitations which bars the late-filing of the complaint.  Opposing counsel might switch from this to another issue involving the complaint, such as whether a specific element of a cause of action, such as intentional conduct, has been plead.  Veering off to another issue is permissible, of course, but your opposing counsel may recite language in the complaint (with page and line citations) that one does not recall because the complaint doesn't contain this exact language.  

Therefore, one may begin to question one's own recollection as to what the complaint states because of what the "gaslighting" attorney has said.  The initial reaction may be to call out counsel for their miscitation to the language of the complaint, but they may be so skilled at weaving what the complaint says with what it does not that it becomes tricky to claim the citation is outright "inaccurate" and, unless one has that portion of the complaint memorized, one may question which words are accurate and which are not.

Note that this is especially likely to occur either when 1) one is making some sort of argument to the lower Court and the case is being handled by another lawyer in your firm and opposing counsel is attempting to take advantage of the fact they have a better knowledge of the record, or 2) one is arguing before the appellate concerning a trial conducted by another counsel.

When gaslighting is aimed at counsel in our hypothetical oral argument, there are several options available.  However, none of these are ideal from the point of view of the counsel being "gaslit:"

• Ignore the attempt to misquote the record on the secondary issue and then continue one's argument as to the main issue;
• Point out to the Court that the citations to the record by your opponent are not "complete" and that the Court should independently review the record on this secondary point, and then one may return to the main issue;
• Stop your argument on the main issue, and assuming you have brought the record with you (and have tabbed it extensively), discuss in detail the facts and/or language cited-to by opposing counsel; or,
• Ask the Court to further brief the issue, such as by way of an informal "letter brief" so one may discuss the facts and/or language opposing counsel refers-to, noting such was not fully briefed and/or your opponent has selectively cited from the record. 

At first blush, it appears the best approach may be the last noted above, as it permits you to not let the issue of the record being quoted incorrectly "slide."  The downside to this approach, of course, is that your opponent, who might not have briefed this secondary issue particularly well (at least in terms of the facts and/or language they are now citing) will have a chance to respond, assuming the court permits additional briefing. 

Therefore, perhaps the second approach is the best, making certain that the misquoting by opposing counsel is noted in a non-confrontational and respectful manner.  One might therefore say (before reminding the Court that "in any event, the main issue is. . .") that the facts and/or language cited by opposing counsel are not entirely true by virtue of stating counsel has:

• Not given the Court the "entire picture" of the facts and/or language as to x, y, or z;
• Cited to facts and/or language "not discussed in any depth" in their brief; and/or,
• Cited to the record as to x y, or z but has not given "any specific page and line cites."

This assumes, as may often be the case, that the Court will find the secondary issue peripheral and not dispositive.  Therefore, the Court may not even ask any questions regarding the secondary issue, and, instead, focus upon the main issue and ignore the attempt by opposing counsel to sow doubt in one's mind about facts which are borderline irrelevant. 

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Second post in our series "Gaslighting and Litigation:" gaslighting to re-write history as to Vice-President Kamala Harris

Among the many present attempts to "gaslight" the American people include convincing people that what they recall about Vice-President Harris is untrue. This goes far beyond pieces of "puff journalism" designed for the specific benefit of assisting her campaign, as these are to be expected from the corporate media. 

However, we are now being told that 1) she was never what was then-termed the "Border Czar," and thus charged with reducing illegal migration, and 2) that she was not a "diversity" hire, and worse, that something is wrong with you if you recall dare to call her such.  These tactics are classic gaslighting designed to confuse us and have us question what we already know.  

Mr. Biden, of course, loudly proclaimed on or about March 24, 2021, that he had anointed Ms. Harris to lead efforts to stem migration across the southern border, as reported by NBC (https://www.nbcnews.com/politics/white-house/biden-taps-harris-lead-coordination-efforts-southern-border-n1261952) and other "news" outlets owned by large corporations.  Previously, Mr. Biden had stated on or about March 15, 2020, that he was choosing a Vice-Presidential nominee who would be a woman and a woman only, as reported by CNN (https://www.cnn.com/2020/03/15/politics/joe-biden-woman-vice-president/index.html), and he has since bragged about this pick and why she was chosen.  As the links above indicate, these facts were reported by two of the most Democrat-party-friendly news media corporations, to wit, NBC and CNN.

Of course, these facts are now being denied by "fact checkers" in order to confuse us and blunt any criticism of Ms. Harris' record while in office.  There have, then, been an onslaught of articles designed not only to squelch debate as to Ms. Harris but to do something far worse:  to convince us we are factually inaccurate (and, of course, sexist and racist) for recounting Mr. Biden's own words as to the role he gave Ms. Harris regarding the border and how he chose her. 

 

Such gaslighting is reminiscent of litigation tactics, which include a common oral argument tactic of counsel in proudly and loudly reciting facts during oral argument in an inaccurate fashion, often replete with citations to the record.  This is often done on a peripheral matter that one may be aware of but has not prepared to discuss to a great degree at oral argument.  

An example might be an appellate argument about a case dismissed following a challenge to the pleadings, with the primary issue being whether the main cause of action pleads facts showing there is an exception to the statute of limitations which bars the late-filing of the complaint.  Opposing counsel might switch from this to another issue involving the complaint, such as whether a specific element of a cause of action, such as intentional conduct, has been plead.  Veering off to another issue is permissible, of course, but your opposing counsel may recite language in the complaint (with page and line citations) that one does not recall because the complaint doesn't contain this exact language.  

Therefore, one may begin to question one's own recollection as to what the complaint states because of what the "gaslighting" attorney has said.  The initial reaction may be to call out counsel for their miscitation to the language of the complaint, but they may be so skilled at weaving what the complaint says with what it does not that it becomes tricky to claim the citation is outright "inaccurate" and, unless one has that portion of the complaint memorized, one may question which words are accurate and which are not.

Counsel encountering such tactics are left with several options as to how to respond, including ignoring the inaccurate recitation, at the risk of having the Court assume such is accurate, or slowing down one's own oral argument to provide an accurate quotation from the complaint, all of which we will discuss in our next post.

  

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First post in our series "Gaslighting and Litigation:" the "cheap fake" gaslighting

We begin a new series on “gaslighting” and how it relates to litigation and argumentation.  Some use the term as a synonym for lying, prevarication, or exaggeration.  While the term does involve deception, it is not the same as simply not telling the truth. These statements from former Presidents of both major political parties — “You can keep your health plan” (Obama), “I did not have sex with that woman” (Clinton), and “Read my lips, no new taxes” (George Bush) — were certainly falsehoods and may have been designed to mislead the American people, because as soon as they were uttered people were pointing out evidence to the contrary.  But they were not gaslighting per se because the deception was not an attempt to mislead by having the victim question their own perception and recollection of reality.

Wikipedia.com defines the term in terms of this manipulation:

Gaslighting is a colloquialism, defined as manipulating someone into questioning their own perception of reality. The expression, which derives from the title of the 1944 film Gaslight, became popular in the mid-2010s. Merriam-Webster cites deception of one's memory, perception of reality, or mental stability.

In director George Cukor’s 1944 American film Gaslight, Ingrid Bergman plays Paula, a woman whose husband convinces her she is ill to make her question her recollection as to her husband’s thievery  As Wikipedia.com summarizes:

Isolating his wife from the world, Gregory convinces her that she is a kleptomaniac, responsible for hiding a painting, and is too unwell to be in public. Unable to prevent her from attending a party hosted by her old family friend, Gregory accuses Paula of stealing his watch. When he "finds" it in her handbag, Paula becomes hysterical in front of the guests. Taking Paula home, Gregory angrily claims that her mother died in an asylum. . . .  Doubting her own sanity, Paula breaks down.

Most recently, such "gaslighting” has become increasingly prevalent among corporate media and our political elite, a key instance being the blatant cover-up regarding the mental condition of President Biden.  When unedited video was seen by millions showing the President staring off into space while on stage at a June 2024 Los Angeles fundraiser for Biden's reelection, our President appeared to be unaware of where he was, necessitating kindly assistance from former President Obama in helping him off the stage, we were lied to and told these were “cheap fakes,” i.e., edited versions designed to fool the audience.  Indeed, the Associated Press and other news organizations engaged in gaslighting by telling us nothing was wrong and what we saw was not what we saw.

Of course, millions such as myself saw this unedited video when first presented by news media owned by major corporations such as Disney, Comcast, etc., entities extraordinarily friendly to Mr. Biden who certainly did not "fake" this video.  But there were certainly others who saw this clip later and might have been misled by the false “cheap fakes” claim and questioned whether they in fact really saw Mr. Biden so disoriented that his former boss became concerned and had to step in.

In future posts, we will tackle other examples of gaslighting, including one involving candidate Presidential candidate Kamala Harris.  More to the point, we will talk about how gaslighting has become an unfortunate litigation tactic — and how certain counsel may attempt to “gaslight” opposing counsel and the Court.

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