• With Eggs and Arguments, Keep the Sunny Side Up, But Cook Both Sides
  • November 25, 2010
  • Law Firm: Holland & Hart LLP - Denver Office
  • For the litigator preparing a witness or working up an opening statement, there is an important question of whether you should just make your own case, or identify and respond to the arguments likely to be offered by the other side.  For the witness, should you cover in direct what you expect will be hit on cross, or should you wait and either hope it isn't covered, or respond to it only on re-direct?  In opening statement, are you better off devoting time to a careful construction of everything that points to a verdict in your favor, or should you, either anticipating or reacting to the other side's opening, focus on tearing down their likely case?  Experienced litigators know, of course, that some attention needs to be given to opposing arguments, but it is often a difficult question of balance.  The fear is that in giving extensive coverage to the arguments emerging from the other table, you are appearing defensive, or giving those issues too much presumptive credibility in advance.  In argumentation and persuasion research, this issue is known as "one-sidedness" versus "two-sidedness."  And it is a question that has been researched -- a lot.  A post earlier this month in Psyblog reported on long-term research conducted by Daniel O'Keefe and others incorporating fifty years of experiments with more than twenty thousand participants.  The over-arching conclusion of that line of research suggests that attorneys, in most instances, should be a lot less skittish about devoting attention to the other side.

    When we think of two- versus one-sided persuasion, one readily available example is advertising.  Usually, we expect to hear a straightforward one-sided pitch for a product or service, but sometimes that pitch compares one seller to another.   Think of the long-running "I'm a Mac...and I'm a PC" advertisements by the Apple Corporation.  The message that "we are good, and they are bad..." however, is not by itself a two-sided argument.  Instead, a true two-sided argument anticipates the case to be made by the other party:  "we are good, and when they try to say that we are bad, they are incorrect, because..."  Often a litigator will be comfortable with the comparative message (focusing on an opposing party's faults), but will be less comfortable with a true two-sided message (addressing the opposing party's expected arguments including their strengths).  When the litigator's reason relates to a desire to avoid opening the door to otherwise forbidden argument or testimony, then the reticence is understandable.  But when litigators more commonly simply want to avoid directing attention toward an opponent's strong points, then the research says that these attorneys are better off with a two-sided approach.

    Dr. O'Keefe's research draws upon an exceptionally robust body of data to show that several of the reasons that litigators may have for drawing back from direct pre-emption of the other side's arguments may be mistaken.     For example, a lawyer might wonder "What if my judge is already on my side?  Will emphasizing the other side's arguments potentially make my position weaker?"  The answer is no, the experiments show that even sympathetic audiences find two-sided messages to be more persuasive.  Or, the attorney might reason that a jury with a lower education level might find it easier to grasp a straightforward message playing only to her client's strengths, instead of trying to repair the weaknesses.  Again, the experimental data would say, no, even study participants with lower levels of education find two-sided appeals to be the most persuasive.

    On the other hand, a litigator might wonder, "What if I bring up an opposing argument, only to offer a weak or non-existent refutation?"  Well, in that case, you do indeed have problems.   Acknowledging the existence of counter-arguments by itself may increase your credibility, but your effectiveness as a persuader depends on your ability to offer a convincing refutation.  So if the other side has a zinger of an argument that you can't really counter, then keep working and keep thinking until you can counter it.  Focusing just on your strengths and hoping that your decision-makers won't notice the other party's strengths isn't likely to be very persuasive.

    The other concern that legal advocates might have is, "look, if I spend all my time responding instead of advancing arguments, then I look defensive."  And that is true, there is a balance.  Remembering the principles of primacy and recency, it is best to begin with strengths and end with strengths, and to work your reactions to your weaknesses in somewhere in the middle.   To return to the metaphor that I hatched in the title -- eggs --  it is only common sense to keep the "sunny side up," or to put more attention on the parts of the case that speak to your greatest strengths.  But the lesson from years of persuasion research is that your decision-makers may be more logical than we give them credit for.  Ultimately, they want a balanced presentation that not only makes your case, but counters their case as well.