Wanted: A theory of the case for National, by Liam Hehir

Litigators have this concept of “the theory of the case”. In short, it is the narrative of what happened that the lawyers want the judge or jury to accept as the true version of events. The Benchmark Institute in the United States has described a case theory as “a detailed, coherent, accurate story of what occurred.”

The idea of having a compelling theory of the case is that unless advocacy is tailored as an intelligible story it will lack persuasiveness. Throwing every possible argument and every possible fact at the wall to see what sticks is unlikely to persuade decision makers since that’s not how human brains work. You need to be able to summarise concisely what the case is about because people need stories.

The government in the dock

The last few weeks have been rough for Labour. While it won almost universal acclaim for its initial handling of the covid emergency, patience has worn thin as time marched on. Auckland has been locked down since August and the government keeps kicking tough decisions down the road.

Ministers and officials seem tired and much more irritable when it comes to dealing with the media – which is always a sign of a government on the wane.

National’s inability to secure a conviction

Yet, while there has been some softening of support for Labour, none of that seems to have been for the benefit of the National Party. People might be increasingly sick of being talked down to or having their concerns dismissed by government officials, but there has been no mental shift in favour of the opposition.

There are all sorts of reasons for this. Opposition work is difficult and gruelling in the best of conditions. When it comes to critiquing the government on the signature issue of the day, however, it does feel like National has no single theory of the case around which to base its criticisms of Labour.

There are too many competing criticisms of the government

Does National thinks the government is too slow or do they think they’re too fast to act?. Did the government overreact by putting the country into level 4 or was it a justified step imposed on the country because of laxity in other areas? Did the government lose its nerve on Auckland with the move to level 3 or was it long overdue?

What’s the National Party position on vaccine passports? Is it a good thing or a bad thing to restrict freedoms based on vaccination status? Are vaccination rates too low or is it really none of the government’s business if people choose not to be vaccinated?

There are undoubtedly answers to all these questions but they are too unclear to add up to a consistent, logical and concise account as to why the government has failed New Zealand.

Pick one theme and marshal the facts around it

A coherent theory might be something like this:

New Zealand dodged a bullet last year. However, because of government inaction, we are now more at risk than ever. All of this was avoidable if the government had been more organised.

Instead, there were delays in organising vaccine supply. The vaccination rate was too slow to ramp up. There was no contingency planning for the failure of elimination, including any kind of real increase in hospital capacity.

For all of the prime minister’s skills with the media, she is completely missing in action whenever the cameras are switched off. This is the problem with having a party of bureaucracy in power – nothing gets done until it is almost too late. We have wasted a golden opportunity.

Criticisms need to be focussed through a single lens

National has in fact said all of those things at different times. It has also said other things which are not connected with that theme. Criticism of the passport vaccine proposals have not been framed as another rushed job, for example, but on the question of whether it would create two classes of citizenship.

Whatever the theory is, National needs to decide on it and then give the matter nearly all of its attention. Every press release and public statements should be consistent with the theory of the case in a way that requires no joining of the dots by actual voters. Deciding what picture the dots make is something the opposition needs to do for itself.

You can’t beat something with nothing

People are increasingly fed up with the government, but they need a central critique to adopt as the explanation for why things have gone off the rails so much. That calls for a laser-like focus on just one or two points and the active rejection of narratives that are inconsistent or which compete with the chosen theme. That takes iron-clad message discipline.

This is all easier said than done, of course, but without a theory of the case National risks being the proverbial dog just barking at so many passing cars.

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