By Dr. Ken Broda Bahm:
Many years ago, when I was still an academic and moving into the field of litigation consulting, I used to coach debate. Recently, a friend from that time told me that he is now coaching a program that includes a lot of inexperienced judges, including parents, and asked if I had advice on adapting to those judges. Specifically, he shared his debaters’ question of whether they should “dumb down” their arguments, or whether they should presume that these newer judges, despite being freshly exposed to the activity, could still bring high intelligence and attentiveness to the task. I saw a parallel in this question: jurors are also non-experts being suddenly exposed to novel argument conditions without generally having any prior experience in the facts, the subject area, or the law.
Many lawyers feel that the nature of a jury does require dumbing down the content. I’ve even heard a lawyer explaining to a key expert witness that he would be talking to “twelve bales of hay” and asking him to jettison some of the more complex aspects of his testimony. Now, I believe that this substantially under-estimates the capacity of most jurors, and also conveys an unhealthy disrespect that could leak into your advocacy. My view? No, you don’t want to “dumb it down,” in the sense of sacrificing arguments that are smart and sophisticated. But yes, you do want to “dial it in” meaning that you should consciously and sensitively conform to your audience’s habits. You want to change the phrasing and delivery of your message so that it is easier for newcomers to process. In short, you cannot ask or expect a juror or a judge to become a different person just to follow your case and understand its importance. In this post, I will share some quick thoughts on five ways to adapt without dumbing down the argument.
1. Give It Space
Expertise means efficiency in processing — being able to understand and apply a lot with less time and effort. So for non-experts, give more space than you would give to experts. At a basic level, that means slow it down. One thing that academic debate and trial shares is the reality of a time-constraint, but for a non-specialized audience like a jury, you need to work at their pace, not yours. Other ways to give it space include pausing to let things sink in and repetition. Repeat the key points more than you think is necessary — more than you think is necessary. Jurors often complain about attorneys repeating a point, but what matters is that they get it. I would rather have jurors who complain about repetitiveness…because they really got the central point.
2. Make It Conversational
By “conversational,” I mean not just tone and pace, but function as well. What makes a conversation is a back-and-forth between speakers: You say something, the other person has a reaction, and the discussion builds off of that interaction. When dealing with a jury or any other audience that does not directly and verbally participate, you need to anticipate and incorporate what their predictable reactions would be:
Now, when you hear that, you might be thinking…
I might not be explaining this well enough right now, so let me…
I’ll bet that one question that’s on your mind right now is…
3. Use the Common Tongue
Show a preference for terms that your target audience already understands without explanation. English is a pretty flexible language, but whenever you have a choice between a more common way of saying it and a fancier way of saying it, choose the common way: This isn’t a poetry contest. Whenever you can be more concrete and less abstract, do it. Jargon, the specialized language that sets experts in a given field apart from the rest of us, should be justified only by necessity. Occasionally, introducing the new term is essential, and when it is, explain it first, then supply the term as a shorthand.
4. Spotlight the Critical Bits
Whenever you are giving someone a lot of information, but especially when you have an audience of non-specialists, the question on your mind as a presenter should be, “What is my highlighter?” Thinking of your verbal presentation as if it were text, what makes the most important parts of it stand out in yellow? Sometimes that highlighter is going to be your visuals — a great reason why PowerPoint should typically accompany opening, closing, and expert testimony. In addition to visuals, points can also stand out through emphasis and other rhetorical techniques like metaphor. The main points you need to highlight are:
Here is what I’m claiming…
The following is what supports it…
And this is why it’s important…
5. Lay Out the ‘How To’ Instructions
What comes from experience and expertise is the knowledge of what to do with information. The lay audience does not have that yet. Among experienced debate judges, there is often talk about a general “judging philosophy,” or a “decision rule” to be applied to specific issues. For judges new to the task, and that includes jurors, they don’t have that map. So it is on the advocate to spell it out explicitly:
When you hear them say that, the first thing you should listen for is…
And here is what you should do with that information…
The best way to arrive at a decision from here is to…
Audiences that are as yet untrained on the issues and the format they’ll be exposed to can be as attentive, as intelligent, and as critical as an expert audience. What they won’t be is as experienced. Ultimately, influence proceeds fro respect, and adaptation is the soul of persuasion. If the adage to “know your audience,” is the starting point, then the destination is “help your audience.”
____________________
Other Posts on Adaptation:
- Improve Adaptation by Expanding Your Social Network
- Embrace the Power of “You might be thinking…”
- Speak to Familiarity: Jurors Know What They Like, and Like What They Know
____________________
Image credit: Shutterstock, used under license