By Dr. Ken Broda Bahm –
Your case has finally gone to the jury, and the panel is now ensconced in the jury room. What are they doing in there? Are they carefully and logically arguing the merits of your case, considering all sides until the truth wins out? If you have ever watched a closed-circuit feed of mock jury deliberations, or talked in detail with actual jurors after a verdict, you know the answer is, “No, not really doing that.” What they are likely doing instead is using argument instrumentally as a tool to help the side that they favor, possibly for reasons unrelated to their arguments.
In part one of this series, I wrote about jurors’ “motivated reasoning,” or the tendency for our logic to follow our motivations, and our reasons to be generated more readily in support of what we want to be true. This absence of neutrality in an individual juror’s reasoning is replicated in the entire jury’s patterns of argument. Instead of arguments being used as a path to truth — an idea that is at the heart of the adversary system — new research is focusing on the fact that jurors and others argue in order to gain advantage for a favored position. If argument is more of an instrumental way to gain leverage in deliberations, and less of a method of testing truth, then that has important implications for the ways attorneys advocate in court, especially during closing arguments.
While the notion of finding truth through the dialectical magic of argument goes back at least to the ancient Greek philosophers, a recent research emphasis driven by a group of French cognitive social scientists tends more toward something called the “argumentative theory of reasoning” (Mercier & Sperber, 2011), which is the notion that humans developed their skill in reasoning in order to help win arguments, not as a way to evaluate the better or the worse course. In other words, we became such smart homo sapiens, not because we search for truth but because we want to have our way, and we want to have it through communication and not just through force. So reason evolved as a tool for argument, rather than vice-versa.
From a human development standpoint, the notion is controversial, but at least in modern times, it seems safe to say that jurors don’t just argue to discover what they think, but instead use arguments to advance their position and sway the other jurors. So, looking at this perspective on the role of argument, what are the practical implications for litigators?
1. Remember, You Aren’t Just Persuading, You Are Persuading the Persuaders. Jury persuasion, especially in closing argument, differs from nearly every other communication situation, because you aren’t just influencing the decision maker, you are preparing the decision maker for a subsequent argument. Time and time again, we’ve seen mock trials where a clear majority will be persuaded in one direction, but won’t be adept at defending their position or in answering pointed arguments from the other side, and will weakly cave in. Some attorneys feel that closings don’t matter, out of a mistaken belief that jurors have already made up their mind by that point (not so — according to a National Law Journal/Lexis survey of jurors, nearly 60 percent say they’ve not yet begun to make up their minds as of closing arguments). In addition to convincing the undecided jurors, you are also equipping the rest for the advocacy that will ensue during deliberations.
2. Remember to Give Your Champions Both Swords and Shields. Aside from convincing, the goal of closing arguments is to turn favorable jurors into advocates, able to instrumentally use arguments on your behalf. Even for those jurors who have already decided or are strongly leaning as of closing arguments, your converts will still need both a sword and a shield in the upcoming deliberations: they’ll need to be armed with good arguments (swords), and prepared to resist the arguments of jurors on the other side (shields). If you are explicit (“There are two exhibits you need to look at…” “There are three reasons that isn’t true…”) you are encouraging your jurors to take notes and to recall and use that information when the time comes.
3. Finally, Remember That Your Jury is Always Smarter than Your Juror. Individual jurors can miss a lot, but the collective jury doesn’t miss much at all. Part of this stems from the advantages of the “argumentative context,” of deliberations that the French researchers are documenting. Saying that arguing is instrumental doesn’t mean it is logically weak. To the contrary, Sperber & Mercier write: “At least in some cultural contexts,” instrumental argument “results in a kind of arms race towards greater sophistication in the production and evaluation of arguments. When people are motivated to reason, they do a better job at accepting only sound arguments, which is quite generally to their advantage.” The jury, as a whole, is more likely than individual jurors to come up with better results because the whole group will be exposed to the best arguments. This jibes with our experience as well. The jury is likely to be smarter, paying better attention, focusing more comprehensively on the case, and noticing better argument quality than any individual group member.
Ultimately, when you are persuading a jury, you are persuading a group, and that means aiming not just to convince but to enable productive argument. By making claims that are clear, memorable, and most of all, useable, you are helping jurors engage in their own instrumental argument on your behalf.
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Other Post in This Series:
- No Blank Slate (Part 1): In Opening, Treat Your Jurors as Motivated Reasoners
- No Blank Slate (Part 3): With Judges, Arbitrators, and Mediators, Don’t Assume
Related Posts:
- Remember That Argument Isn’t The Most Important Part of Closing
- Understand Juror Bias, But Bet On The Evidence
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Mercier H, & Sperber D (2011). Why do humans reason? Arguments for an argumentative theory. The Behavioral and brain sciences, 34(2) PMID: 21447233
Photo Credit: Flickr Creative Commons, Karen Horton