By Dr. Ken Broda Bahm:
There is a danger in what I call the “product” orientation toward persuasion. That orientation focuses on persuasion as an outcome, as a discrete “thing” that is transferred from a sender to a receiver. The advocate in effect thinks, “I have something — it is called a correct opinion — and my mission is to transfer that from me to you.” In some ways, this product orientation is embedded in our language: We talk about how well we can “sell” an idea, or check to see whether our target is “buying” it or not.
Instead of that product orientation, I think it helps advocates to adopt a “process” orientation. In that frame of thinking, persuasion is not about your target just accepting or rejecting the result that you have planned for them, but is instead about them walking with you down a path toward what you believe is the right conclusion. But they’re following that path, not out of simple authority (because you told them to), but out of a belief in their own autonomy and priorities. They are following the path because it seems like the useful and right one to them. In a past post, I laid out a more theoretical version of this argument — focusing on the stages of a legal audience in understanding, caring, agreeing, remembering, and ultimately using your information, in that order. In this post, I want to develop that further with a little more advice on how to practically approach legal persuasion as process rather than product, starting at the beginning of litigation and working your way through the case.
The Process in Pretrial
Discovery focuses on the process of how witnesses know what they know. So when planning your depositions, ask questions with an eye toward the eventual need to tell a jury why particular testimony either can or cannot be believed based on how the witness got to a conclusion. With expert witnesses, of course, the methodology used to arrive at conclusions is critical, if jurors are to follow that process in order to accept or reject the testimony. But for fact witnesses as well, it’s important to get beyond the “It’s true because I say it…” level, since that can be deeply unsatisfying to skeptical listeners, particularly when there is conflicting testimony. Instead, focus on how they arrived at their understanding of the facts so jurors can assess that process along with you.
The Process in Voir Dire
I think it is a common mistake, and another feature of the “product” mindset, to think of a bias as something that potential jurors have, lack, or can set aside — as if it were a piece of luggage that they might either be bringing in with them or leaving at the courthouse door. Instead of replicating that attitude during voir dire, it helps to preview for jurors that the decision, as well as any struggle against bias, is going to be a process. That is why the best question isn’t, “can you be fair,” but “How much of a challenge would it be for you to go through this trial without thinking back on that attitude or experience?” If they see it as a process they’d need to work through rather than a possession to just be set aside, they may be more likely to call it a bias.
The Process in Opening Statement
It is a common trope for attorneys in opening statement to describe their role as providing the picture on top of the puzzle box, suggesting that it is the jurors’ job to eventually use the evidence to replicate that finished product as it was revealed in opening. The problem is jurors don’t want to just make someone else’s picture, they want to find out what happened. They want to follow their own process, or at least believe that they’re following their own process. That is why I think, to a degree at least, a good opening statement should foster that sense of independence by talking not just about what the jurors need to conclude, but also how they ought to get there.
The Process in Witness Examination
What the law tells you to do in witness examination is to elicit the key pieces of testimony that either establish or undermine the elements of the claim. That focus can lead to what I call the “checking the boxes” approach, as if you are filling out a form. If you are thinking about the jury, however, you are more likely to examine in a way that puts yourself in their place, being “the voice of the jury” by asking about what you think they might know in the order they might want to know it, and doing that even when the information may not be strictly required by the elements of the case. You won’t always know what they’re thinking, but trying your best mind-meld under the circumstances, to focus on what they would want and need to know, always helps.
The Process in Closing
The absolute best time to apply a process rather than a product focus is in your closing argument to the jury. At this point, they are about to start the process of deliberating their way to a verdict, and contrary to popular legends, they haven’t all already decided the case. Deliberation does matter a great deal, as watching any mock trial will tell you. Use your closing, not to just preach about the decision they should get to, but to teach them about the way to get there. Focus on what they’ll need to ask, consider, look for, and decide. You want to frame yourself as a coach for them to get through this process all the way to the right result.
As a final step, sometimes you get to talk to jurors after a verdict. Instead of hitting them with rapid sequence of “what about this…” questions focusing on the details and evidence, I have found that it is best to start with broad open-ended questions that focus on their process: So tell me, how did you get to your verdict?
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Other Posts on ‘Big Picture’ Persuasion:
- Don’t Persuade
- Arc Your Trial Story
- See Persuasion as a Process (Toward a Unified Theory of Legal Persuasion)
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