July 4, 2011

Avoid Condescension and Other Sins of Legal Argument: Know Your ‘Second Persona’

By Dr. Ken Broda-Bahm –

Shadow man
Lucy, for the umpteenth time, holds the football and invites Charlie Brown to kick it with the promise that this time, she won’t pull the ball at the last moment and send him flying.  His response:  “I don’t mind your dishonesty, half as much as I mind your opinion of me. You must think I am stupid.”  That simple response reminds us that your communication conveys not only content, but also our attitude toward our audience.  To the rhetorical scholar Edwin Black, that conveyed attitude amounts to a “Second Persona,” that is important to all persuaders, including litigators.  The first persona is what we as a speaker convey of ourselves – our credibility and character.  The second persona is what we reveal about our view of the audience:  what we believe or expect them to be.  And what attorneys appear to think of their audience – judges and juries – can be critical. 

Jurors don’t generally like lawyers, and judges aren’t always thrilled with them either.  One reason for that can be attitudes about audience that are unintentially conveyed along with the argument.  Condescension can be an occupational hazard of legal argument:  After all, if you didn’t feel like you had a superior position, then why would you be arguing?  This post takes a look at this notion of “second persona” as one tool not only for avoiding condescension, but also for more generally guarding against the implied insults that can be an inadvertent part of an attorney’s message.

What is a “Second Persona?”

Writing in 1970 and focusing on the anti-communist rhetoric of the times, the communications scholar Edwin Black coined this phrase to remind those who seek to persuade that they are not just revealing something of themselves in their speech, but are also conveying an “implied audience” as part of their message.  In communication,  Black said, “we can find enticements not simply to believe something, but to be something.  We are solicited by the discourse to fulfill its blandishments with our very selves.”  That second persona – the speaker’s apparent view of what an audience is like and how they are likely to be persuaded – is an important part of what we understand, and potentially criticize, about any message. To call it a “persona” doesn’t mean it is false, only partial.  Just as an audience only gets a slice of you as conveyed through your speech, they also get just an incomplete, and sometimes inaccurate, representation of what you think of them. 

The second persona is obviously present in legal argument.  For a lawyer addressing a jury, there are frequent differences in social power (greater education and status) and differences in knowledge (understanding of the law and the case) that separate speaker from audience.  That, combined with many of the less than flattering assumptions about lawyers that jurors bring to the courtroom, mean that a jurors’ negative reaction to an implied message is an important risk to consider. 

What are the Biggest Implied Messages to Avoid in Legal Argument?

This is my list of the top four bad messages that lawyers can unintentionally send about how they view their jury.  Obviously, no thinking lawyer would convey these messages directly or purposely, yet the risk remains that a jury ends up getting that message anyway.

“I Think You’re Stupid.”  Jurors don’t know the law and don’t know the facts, but carry the same practical intelligence as anyone else in the courtroom.  Avoid the impression of talking down to them.

Bad:  “I know that this is going to be hard for you to understand, but the experts and I have worked hard at making it as simple as possible…”

Better:  “This will be new information, but you will be able to understand it based on something that is already very familiar to you…”

“I Think You’re Not Really Paying Attention.”  Jurors hate repetition (that is the number one complaint in post-verdict interviews), but it is is still important to give repeated emphasis to the key concepts.  The strategy is to selectively repeat without giving the impression that you thought they were nodding off.

Bad:  “You may not have noticed it in the testimony, but I really need to stress again what Mr. Smith said…”  

Better“And there is one moment that I’m sure you remember from testimony:  When Mr. Smith admitted…”

“I Think You’re Biased.”  Make no mistake, jurors do carry biases based on their own experiences and attitudes.  But the only jurors who like to be called on their biases are the ones seeking to be removed for cause during voir dire.   

Bad“Right now, you’re probably thinking, ‘a big company with deep pockets – why not make it pay some money to the little guy?’  But…”

Better“You heard opposing counsel refer to us as ‘a big corporation,’ and I’ll bet that you understand why she did that.  But this decision is going to be based on evidence, not stereotypes…”

“I Think You’re Easily Persuaded By Technique Rather Than By Evidence.”  Persuasive technique is critical, but should not call attention to itself.  The moment jurors feel like they’re being appealed to based on a “strategy” is the moment they’ll believe that you don’t have the evidence on your side.  

Bad:  “Opposing counsel is making a big deal out of this document, but remember the theme that I keep emphasizing in this trial…”

Better:  “On this document, opposing counsel keeps saying the same thing:  ‘Where there’s smoke, there’s fire.’  But this case is about evidence, not analogies, and when you look at the document, you’ll see that, at most, it is a campfire and not a forest fire.  Let’s take a look…” 

Avoiding these and the other perceived sins of legal argument ultimately comes down to a lesson that is about as earnest as Charlie Brown himself:  assume the best of people, and that includes the people on your jury.  After all, the scene always ends with Charlie Brown trying, one more time, to kick that football.  In reality, you should not be quite as trusting as Charlie Brown, but your implied audience in the courtroom — your second persona — should be one that takes Lucy at her word.

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Black, Edwin (1970).  The Second Persona.  Quarterly Journal of Speech 56: 2, 109-119. 

Photo Credit:  jgilbrech80, Flickr Creative Commons

 

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