Tag Archives: litigation consultant

February 11, 2013

Persuade With Participation, Part One: Learn from Early Rhetoric

By Dr. Ken Broda-Bahm: 


An attorney in our firm recently stopped me in the hall. “I’m giving a talk on how to persuade in court,” she said, “Anything I should emphasize?” Where to start, I thought, where to start? It is a broad question, as the topical range of posts in this blog can attest. But the question’s very breadth pushed me to consider the basics and led me to this answer: “The target for your persuasion isn’t passive, it is active. Whether you are trying to influence a judge, a jury, or anyone else, they don’t simply hear your message and then accept or reject it. Instead, they participate.” That is clear enough when you think about it. Audiences bring their own knowledge, perceptions, and counterarguments, and nowhere is this more clear than in a legal context that includes an interrupting judge or a deliberating jury. They don’t just “buy” or “not buy” our message like a shopper would accept or reject a tomato. They’re critical players, whether verbal or not, in a joint creation of meaning on what happened, what is fair, and what is moral. 

That is a heady concept, but to get back to my colleague in the hallway, and to get back to the practical communication needs of all litigators, what do we do with that? How should litigators adapt to the participative power of their mediator, judge, arbitrator, or juror. I think a broad answer can be found in both the oldest, as well as the most modern perspectives on communication. In this, the first of a two part series on participation in persuasion, I am going to start on the ancient end of the timeline by talking about Aristotle’s concept of the “enthymeme.” After explaining that mouthful as a practical tool for arguing in ways that encourage participation, I will identify and provide examples of a few different approaches. 


Before getting into Aristotle’s idea of the enthymeme, lets take a closer look at what participation means in the context of legal persuasion. Two consultants with the National Jury Project, Aristotles in our field, Jeremy Rose and Susan Macpherson (2005) explain that it comes down to “hitting jurors where they live:” 

The first thing to keep in mind is that your arguments should appeal to what your audience already finds meaningful. To put it another way, it is much more effective to work with the thoughts, beliefs, attitudes, and values already in the jurors’ heads than to try to implant new ones. Many attorneys may think their role is to convince jurors of things the jurors did not formerly believe, but this is the least effective way to persuade. It works much better to tap into beliefs and attitudes the jurors already hold. 

Accordingly, Macpherson and Rose argue that legal persuasion only works if you are tapping into the “internal dialogue” that is going on within your target as you present your case. Of course, when you think of persuasion as an implicit dialogue, that idea takes you back to the earliest thinkers about the power of communication: a road leading straight to Greece, and to Aristotle in particular. A little bit less familiar perhaps than the teacher’s “Greatest Hits” of Ethos, Pathos, and Logos, I believe that the central point of Aristotle’s view of argument is captured in the enthymeme. 

The Enthy-What?

The enthymeme. This is one area where it pays off to take a moment to understand the term because it readily applies to practical persuasion. Since the enthymeme is most often defined as a “rhetorical syllogism,” lets start with a quick return to your basic logic class and a reminder of what a syllogism is. It is two premises leading to a conclusion: 

A Syllogism:

Major Premise: “A valid contract requires consideration.”

Minor Premise: “This contract had no consideration.”

Conclusion: “This contract is invalid.”

It is what they call a “structurally certain” appeal: If the major premise is true, and the minor premise is true, then the conclusion is inescapable. That is how it works in a logical world where each component of an argument needs to be proven. That is most often how it works in the world of briefing as well: Even if you know, the judge knows, and the whole rest of the world knows that a valid contract requires consideration, there will still be a section in the brief detailing that argument. 

But in practice, the discussion and the oral argument is likely to be different, and that is where the enthymeme comes in. The enthymeme recognizes and builds off of what your audience already knows: 

An Enthymeme

Your Target Already Believes: “A valid contract requires consideration.”

So You Add:This contract had no consideration.”

And They Conclude: “This contract is invalid.”

While you may need to recognize or remind, you don’t need to argue for what your audience already accepts. It may seem like less proof than the syllogism, but the audience accepts it more since it builds off of what they already believe. Instead of being asked to take an argument made out of whole cloth, they are given additional information that just supplements what they already know. Beyond seeing the enthymeme as a truncated syllogism, though, it is also a recognition of the imperfection of human argument in distinction from a pure realm of logic. In other words, we only rarely get to deal with premises as absolute as contracts requiring consideration, and enthymemes account for that. As Christopher Beshara writes in a passage that speaks well to the litigation situation, “While the enthymeme is not as logically forthright as the syllogism, it is eminently tailored to an imperfect world where absolutes and definitive propositions are not only unattainable, but also counterproductive.” 

What is productive is to discover proofs that your targets already understand and accept. One clear takeaway is that effective litigators need to start out their preparation by asking, “What does my jury or judge already know, believe, think, or feel about my case?” And the answer isn’t, “nothing, because I haven’t presented the evidence yet.” Judges will have had many of the same or similar cases. And jurors inevitably have had experiences and developed attitudes which help them frame the way they’ll look at your case. Viewed this way, the prior analysis you do on your judge, through the survey or focus group research within your venue, is not just a way of testing out what will happen in trial; it is a critical step in knowing where to begin in your arguments. 

The first step is to ask what your audience is likely to be thinking out of the gate. But as you try to include your persuasive target’s own thoughts into your arguments, let me prime the pump by identifying a few different types of enthymemes. 

Ways to Include Your Audience in Your Argument

Enthymemes all begin with a “yes” in the form of an agreement with something that is already there in the audience’s mind. But from that point, they can go in a few different directions I’d like to illustrate. To make things more challenging, let’s stick with a contract litigation example and assume that we’re arguing to the court in a situation in which an ambiguously drafted contract can be interpreted to either grant royalties permanently, or based on a shorter term, identified in a prior section of the contract. While the illustration applies to judicial argument, the same implicit dialogue would occur in a juror context as well, as long as we believe we know what the jury is thinking. 

Out of many possibilities, here are three of my own ways of thinking about where an enthymeme can go: 

The “Yes, and” Enthymeme

The “Yes, and” enthymeme supplements, starting with something the audience supports and adding another component to it in order to bring them to the conclusion. 

Your Target Already Believes: “Companies are rational and try to protect themselves.”

So You Add: “The Plaintiff’s interpretation, in providing endless royalties, provides no protection to the company at all.”

And They Conclude: “No rational company would have intended the contract to have that meaning.”

In this example, your target’s current beliefs are fine, but just missing one piece, and you persuade by adding that piece. 

The “Yes, but” Enthymeme

The “Yes, but” enthymeme also begins with something the target already believes, but in this situation it is not enough to just supplement. Instead, the existing belief needs to be recast or reframed, possibly by appealing to a larger principle at stake. 

Your Target Already Believes: “The Plaintiff’s reading seems simple on face.”

So You Add: “Its correct that we need to favor simplicity in interpretation, but the simplest interpretation is one that gives definite meaning, and not indefinite meaning, to the royalty provision.”

And They Conclude:The simplest interpretation favors the Defense.”

In this case you are accepting in part, and rejecting in part, the persuasive target’s current belief. They are correct in principle (simplicity is best) but wrong in fact (the Plaintiff’s interpretation is not simpler). The argument tries to move them to an opposite conclusion, yet there is still a persuasive edge in the fact that you’re recognizing and building off their current belief.

The “Yes, exactly!” Enthymeme

The previous examples show situations where current beliefs need to be altered in order to reach your persuasive goals. In other situations, your target’s current beliefs already support your goals…your target just doesn’t know it yet. With the “Yes, exactly!” approach, also known as “turning the tables,” you’re expressly telling your audience that what they already believe supports your side, not theirs. 

Your Target Already Believes: “Large companies always try to avoid paying their fair share.”

So You Add: “Right! So no company like that would intentionally promise permanent and limitless royalties in a business deal.”

And They Conclude: “So that can’t be what the Defendant intended in this deal.”

The low expectations that may sound like a criticism are actually the foundation for a strong argument favoring the Defendant’s interpretation. It is a way of saying, “you’re right…and that is why I win.” 

Of course, there are many other ways to think about enthymemes, and also countless other implications to the idea that persuasion requires participation. That makes it a good starting point for answering the hallway question posed by my colleague. I will include additional takeaways from a modern research-based perspective in part two of this post. 


Other Posts on Rhetoric: 


Beshara, Christopher. (undated). “Arguing in an Imperfect World: Aristotle, the Enthymeme, and Epideictic Rhetoric.” URL: http://cas.umkc.edu/english/publications/youngscholarsinwriting/documents/ArguinginImperfectWorld.pdf

Photo Credit:  Tilemahos Efthimiadis, Flickr Creative Commons

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