By Dr. Ken Broda Bahm:
If you returned with me to Shakespeare’s original theater, the Globe in London around 1600, you would notice one important architectural feature: There is a gallery and there is a pit. The gallery, the seats in the bleachers that ring the outside of the theater, are the pricier seats occupied by the more well-to-do theater goers. The pit, the straw-covered floor of the theater, is where the less affluent would stand and watch the show. Based on this class difference, there is also a difference in the kind of show that each audience wants to see. According to Dr. Jo Koster of Winthrop University in South Carolina, “Those in the galleries would be somewhat educated,” she notes, and “able to appreciate subtle humor and character development.” But those in the pit, “would need action, sex, and slapstick.” So the playwright alternated: After a particularly heavy scene, like Hamlet’s soliloquy (“to be, or not to be,” etc.) to appeal to the gallery, the playwright stages a violent tiff between Hamlet and Ophelia (“get thee to a nunnery”) and the set-up for a accidental killing (of Polonius) to appeal to the pit. The same pattern is found in other of his plays: A little philosophy, a little sword fighting.
A recent panel at the ABA Annual Meeting in San Francisco focused on what Shakespeare had to say to lawyers (it turns out the “first, kill all the lawyers” thing is presented as a route to tyranny). I wasn’t able to attend, but I do wonder if the panel touched on this “multiple audiences” lesson from Shakespeare. Litigators addressing a jury have the same need for complexity in focus. But in addition to addressing differences in social class, age, education, race, and gender, attorneys are also speaking to differences in whether jurors are naturally favorable or naturally skeptical of your kind of case. For a defendant, the supportive pit might be the management-experienced pro-business types that are prone to lean toward defendants and to disparage frivolous suits, while the more important gallery would be the blue-collar or educated liberal groups who distrust power and root for the underdog, and who you most need to persuade. While you naturally want to target the tougher audience in the gallery, that doesn’t mean ignoring your die-hard supporters in the pit. This post will use a quick and simplified example to highlight the ways a good litigation message should target both the gallery and the pit.
A Sample Appeal to Both Your High- and Low-Risk Jurors
While it is often more complicated, for the sake of simplicity, let’s say your products defense jury contains two kinds of people. Your first audience, your supporters in the pit, would be those who feel businesses are over-regulated and who apply a narrower view of law and a broader view of personal responsibility. Your second audience, your tougher targets in the gallery, will focus on ethics and a “care” mentality, have a distrust of large companies, and put a lesser focus on personal responsibility. How would a trial message try to appeal to both audiences? Let’s take a look at an example.
Audience 1 Audience 2
Your Supporters in the “Pit” Your Targets in the “Gallery”
(text in italics) (text in bold)
Companies who make products need to exercise
the power and responsibility that they have.
Just as individuals need to exercise
their own power and responsibility when
using products.
As a society, we aren’t always happy with the
choices and priorities of big businesses.
But we also don’t want to discount it when
a company gets it right — when a company uses the
science, the testing, and follows the regulations
to make the product as safe as it can be.
Products obviously need to be as safe as possible
because they’re being used by people.
But they also need to be able to do the job for which
they’re intended, or people will have no reason
to use them.
Individuals don’t always make the right judgment
calls.
Businesses don’t either. That is why we need tolook at the balance of responsibility.
The question is, when a consumer uses a
potentially dangerous product in a way a
manufacturer explicitly warns against, is
the manufacturer responsible for the
resulting injury?
There is no doubt, there is a substantial
and tragic injury in this case. We can’t help
but feel some sympathy and think about
how this could’ve been avoided.
But the law asks you to focus on responsibility,
not sympathy.
And the law also empowers you to say what
we tolerate, what we allow, and what we uphold.
In this case, what the evidence will uphold is that this is a tragedy, but one that was foreseen, tested against, and specifically warned against. It couldn’t not have been specifically designed against, though, without taking away the very purpose and effectiveness of the product itself.
In other words, you can warn people that a lawn mower cuts.
But once you make it no longer cut, it is no longer a lawn mower.
In this example, there is a bit of jumping back and forth – communicating a single message that contains nods to both audiences. With a bit of artistic license in the metaphor, this can be seen as a little like Shakespeare’s moves: now the soliloquy for the gallery, and now the sword fight for the pit. But what is being accomplished, both for Shakespeare and the litigator, is a kind of knitting together of the audiences. After a bit, the message should be bringing the audiences together so those struck by the philosophical musings are also entertained by the sword play and vice versa. And litigation audiences start to see connections between those views that naturally resonate and those that might seem foreign. Addressing multiple audiences is a way of building one audience.
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Other Posts on Lessons from Drama:
- Take a Discovery Lesson From ‘The Social Network’
- Yes, Virginia, There is a CSI Effect: Account for It in Your Science Case
- When You Think “Story” Think “Structure”
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Photo Credit: Pleuntje, Flickr Creative Commons