By Dr. Ken Broda Bahm:
What do scholastic debaters do after they graduate? Based on my own social circle, they either teach others to be debaters, or they become litigators. It is by no means a universal prerequisite, but it is common enough that within any gathering of trial lawyers, at least some of them, sometimes more, will have been debaters in high school or college. Some go into debate with the intention of developing pre-law skills, while for others, it seems only natural after the last tournament to seek out an occupation with more “rounds” and higher stakes. What that transition means for those ex-debaters in law is that they will need to adapt to an aligned, but still quite different forum for persuasion. What that transition means for everyone else in the legal field — colleagues and clients alike — is that they will need to deal with a few transitioning ex-debaters in their midst.
An article in the current issue of the Houston Law Review (Fulkerson & Lotz, 2013) addresses exactly that transition. Written by Tom Fulkerson and Wes Lotz, two Houston attorneys who are both veterans of the highest levels of American intercollegiate debate, the article describes the modern policy debate experience, and then focuses on the various ways debate-trained lawyers need to adapt, or in the authors’ words, “reengineer” themselves. Looking at a number of differences relating to substance and style, they come to the conclusion that policy debate is valuable background for lawyers as long as that critical reconditioning occurs. “What causes a ‘win’ in debate,” they note, “is very different from a ‘win’ with a trial judge, jury, or arbitration panel – and most importantly, a client.” While the article does a good job of noting the differences in context, it got me thinking that this need for reconditioning applies not just to recovering recent debaters, but to all argumentatively-minded litigators…which is to say, all litigators. Based on that, I thought I would pick up on some themes of the article and extend it to a general message for translating the argumentative debater’s focus into the persuasive litigator’s focus.
I believe this translation depends on three principles, applying not only to the recovering debater, but also to any litigator trying to ensure that their focus is in the right place.
Overall, Choose Persuasion Over Argument
There is a tendency, particularly within law, to equate argumentation and persuasion: How do you persuade? By offering arguments, of course. But that isn’t all of it, or even necessarily the half of it. You win the argument when your point cannot be refuted, but you persuade only when your target is convinced. Over the years, most formats of academic debate have clearly chosen argument over persuasion. No self-respecting debate judge would admit that they are siding with the winner because they more fully understand and accept that side’s advocacy. Instead they will say, often in excruciating detail, that the points made by the winning side are argumentatively superior. Instead of persuasion’s focus on the full spectrum of influence, there is argumentation’s focus just on reasons leading to conclusions. The debater doesn’t care whether the judge is buying an argument or not, they only care whether the judge sees that their reasons have gone unrefuted. The litigator, in sharp contrast, has to get past seeing their jury, judge, or arbitrator as a scorekeeper of argument and, instead, see them as a full target for persuasion. That means emphasizing reasons and evidence as the “logos” of argumentation, but also including credibility and emotion, the “ethos” and “pathos” of persuasion as well.
On Style, Choose What is Adaptive Over What is Functional
If you’ve seen one, or just a few rounds of modern high school or college debate, then the feature you no doubt noticed most is the rapid-fire, nearly hyperventilating style of speech. And if you participated in these styles of debate, then you probably practiced “speed drills” in order to become as fast as possible. Why? Because debaters treat individual arguments as playing pieces, and the more pieces on the board, the greater the flexibility you have with them and the greater the chances that your adversary will ignore one of them. It doesn’t do much for the audience, at least not an untrained audience. But it isn’t meant to be aesthetic, it is purely functional: an argumentative tactic. Debate experienced attorneys, of course, quickly adapt, and Fulkerson and Lotz note that every debater who has become a trial lawyer has been told at some point to slow down and to adapt to their audience. But beyond this obvious need, there are other ways legal advocates need to avoid putting a functional emphasis ahead of a need to adapt to a particular audience. For example, some lawyers wrap themselves in the language of the law, or seek cover within the language of a specific discipline like medicine, patents, or science. It is clear that terminology serves a function, like the debater’s use of speed, but it is less frequent that it helps the advocate adapt to their audience. The basic point, for ex-debater attorneys and for all attorneys, is that no aspect of the game or the competition should be allowed to become more important than the need to communicate.
On Proof, Choose Quality Over Quantity
In the real world as Fulkerson and Lotz note, weaker arguments have a counter-persuasive effect. So adding an argument that fails to help is often the same as adding an argument that hurts. That means that a case with just two strong arguments may well be better than a case with three strong arguments along with two weak ones. Debate training tends to set aside that truth, however, in service of strategy. Debaters never expect to carry all of their arguments to conclusion. Instead, they “spread” out their opponents by offering a large quantity of arguments and then selecting just a few toward the end based on how their adversary responds. If that is the goal, then a bad argument can be just as useful as a good one, and that’s made even easier in a debate context where just about anything published counts as “evidence.” Within the law, of course, “evidence” occupies a narrower band and “credible evidence” an even narrower one. Every argument made in court takes a toll on your persuasive target’s attention, recollection, and attitude, in addition to having a positive or negative effect on your credibility. “In the trial advocacy world” the authors note, “Very low probability arguments are invariably cast aside for the more bread and butter discussions that are central to a case.” That is the goal, but it can still be difficult in practice. Protracted discovery, for example, commonly yields many possible arguments, not all of them good. The legal advocate has that same need to be selective, but must make the most important choices before, rather than during, trial. Bottom line: Never make an argument simply because it can be made.
At the end, I have to confess that writing this post is therapy in part. Not all former debaters become lawyers, some like me become litigation consultants. When I participated in debate as both a competitor and a coach for many years, it taught me many of the analytic and creative skills that I use every day. But it led to some of the bad habits that the authors write about as well. As long as former debaters adapt, debate provides critical training for those who work in litigation. And the most valuable adaptation is one of the most important adaptations for any persuader: take the perspective of the other. As Fulkerson and Lotz write, that means “determining what ‘worldview’ a jury is likely to take, understanding the place the facts of your case occupy in that worldview, and then taking the best path to obtain the jury’s agreement. This, even more than needed changes in speaking style, is perhaps the most significant change competitive debaters need to become effective trial practitioners.”
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Other Posts on Argumentation:
- Make Better Decisions By Fighting Within Your Trial Team
- Look Like You’re Winning: 2012 Presidential DebateSeries, Part One
- Avoid Condescension and Other Sins of Legal Argument: Know Your ‘Second Persona’
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Tom Fulkerson & Wes Lotz, Good Habits and Bad Habits: The Recycling of Competitive Debaters into Trial Lawyers, 4 HLRe 25 (2013).
Image Credit (Lincoln-Douglas debate statues): ksablan, Flickr Creative Commons
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