By Dr. Ken Broda-Bahm:
A fair proportion of the legal advocacy in America today is taking place via written communication. With only a small percentage of cases actually ever seeing a jury — three percent, or less — cases are more and more often reaching their ends based on written motions. Summary judgment decisions are often decided based on briefing, and in settlement negotiations as well, it can often come down to letters and emails ferried back and forth between the parties. There is obviously still a place for trial and oral argument, still a role for the advocate standing at the lectern and facing the fact-finders. And there is also clearly still a role for passionate and powerful face-to-face negotiations in pursuit of settlement. But is there a danger in the continuing drift toward replacing oral advocacy with written advocacy, as briefs and letters more often displace the spoken word?
I’d argue that yes, there is. Verbal communication is not just a delivery system, and oral advocacy doesn’t just involve speaking the words that would fare just as well on paper or on a screen. Instead, I believe that there is a unique component that is only conveyed in spoken persuasion and advocacy. You might think that the same content can be effectively conveyed in writing, perhaps with even greater care, control, and convenience. But what is missing? In large part, it is the human factor. And now there’s a study to prove that. In an article in the current Psychological Science, researchers (Schroeder, Kardas, & Epley, 2017) demonstrate that hearing an opinion spoken has a uniquely humanizing influence on perceptions of the source. When compared to the same message delivered in writing, the spoken message is more likely to generate empathy. “If mutual appreciation and understanding of the mind of another person is the goal of social interaction,” they write, “then it may be best for the person’s voice to be heard.” In this post, I’ll discuss the study and share three quick thoughts on preserving the role of spoken advocacy in litigation.