Better Ways to Make Your Case

Free-Range Thinking | April 2001

If persuading an audience is part of your job, a new course at Quinnipiac University School of Law has valuable insights for you.

At Quinnipiac University in Connecticut, three law professors have created a course that is breaking new ground in legal education. Entitled “Visual Persuasion in the Law,” the course teaches law students how to supplement their oral arguments with visual elements to make a more compelling case. “Our culture is increasingly visual,” says Neal Feigenson, a co-creator of the course and author of the book, Legal Blame: How Jurors Think and Talk About Accidents. “Not coincidentally, visual communication is playing a larger and larger role in the courtroom.”

But this isn’t merely a series of lessons about creating more colorful charts or holding up bloodstained gloves in just the right way. Feigenson and his colleagues, Richard Sherwin and Christina Spiesel, recognize that much of the common sense and shared knowledge found in a jury box today comes from television and movies. Consequently, they believe their students will communicate more effectively once they understand how popular storytelling and iconography work in a media-saturated world. Talking with Feigenson earlier this year, I heard several pieces of advice that would benefit anyone who must make a case to a larger audience, beginning with:

One picture is worth the thousand words you can’t say.
Photographs can often accomplish what words cannot because they possess a quality which Feigenson calls “strategic ambiguity.” He offers a famous example from the 1988 presidential campaign in which George Bush used a picture of Willie Horton (the convict who committed assault and rape during his release in a furlough program) to sink the Democratic candidate, Michael Dukakis. Every time the Bush campaign showed the photo of Horton, Feigenson says, they were essentially saying, “Vote for Dukakis and a scary black man will kill you.” George Bush, of course, would never say those words – but a single picture could make the implication for him.

In Visual Persuasion: The Role of Images in Advertising, author Paul Messaris explains how this same technique is used in environmental ads. A picture of a clearcut forest, for example, will appeal to the reader’s aesthetic sensibility without having to explicitly say, “Gosh, doesn’t this look terrible.” As Messaris points out, “These are messages that an environmental advocate might be reluctant to put into words. They seem too vulnerable on grounds of superficiality or elitism. But because of the open-ended, implicit nature of meaning in visual syntax, equivalent messages can be expressed with much greater impunity through images.” In short: when you’re in sensitive territory, don’t say it, display it.

It’s what you say and how you say it.
Substance does not always carry the day in the courtroom, says Feigenson. Sometimes the side with the better-looking presentation will win because the persuasion process relies not only on what you say, but how you say it. “When your audience is unable or unwilling to pay attention to the central message,” Feigenson explains, “peripheral cues loom larger.” Messaris demonstrates this phenomenon in Visual Persuasion with an experiment in which teenagers viewed two public service announcements for “Rock the Vote.” One PSA showed a talking head in a single static shot while the other had MTV-styled editing, jiggly camera movement, etc. Even though the scripts for the two spots were identical, the teen audience judged the MTV-styled spot more persuasive. (Yes, Virginia, people do judge books by their covers.)

Everyone needs a “theory of the case.”
Picture this: a lawyer emerges from a courthouse and is confronted by a gaggle of reporters on the steps outside. “How can you possibly win this case?” one of them asks, shoving a microphone in the lawyer’s face. Here is one instance when every lawyer must have what Feigenson calls “a theory of the case” – a single-sentence encapsulation of why your side should win. “If you can’t say it on the courthouse steps,” says Feigenson, “if you can’t say it in 15 seconds on Larry King, you don’t have a theory of the case.” The essential point here is not simply to be glib, but to force lawyers to find the central organizing principle for all their arguments. Sometimes in a proceeding an attorney may have as few as thirty seconds to convince a judge to send her case to the jury. As Feigenson explains, “The judge, or the jury for that matter, needs that organizing principle, that way of making sense of everything that comes afterward.” A theory of the case is the moral equivalent of the public interest campaign’s carefully crafted sound bite. Both should answer the question, “If the audience retains nothing else, what single point must they remember about your side of the story?”

Required Reading
No, there won’t be a test, but if you’d like to go deeper into this area of persuasion, I can personally recommend the following books:

Influence: The Psychology of Persuasion by Robert Cialdini
(William Morrow & Co. � 1993)

Visual Persuasion: The Role of Images in Advertising, by Paul Messaris
(Sage Publications � 1997)

Descartes’ Error: Emotion, Reason, and the Human Brain, by Dr. Antonio Damasio
(Avon Books � 1995)

 free-range follow-up

A Better Way to Vote

After debating whether or not to go forward with a new fundraising plan, the directors of a public interest group vote 9 to 1 to approve. When the development director seeks help implementing the new fund drive, however, almost all of the directors bail out. What went wrong? The disconnect can frequently be traced to the voting process, because simple yes-or-no votes do not tease out concerns which may be lurking in the background. So let’s try that vote again, but this time we’ll give the directors more choices. Using “gradients of agreement” (a process I discovered in Sam Kaner’s excellent book, Facilitator’s Guide to Participatory Decision-Making), here’s what that same vote might look like:

Endorse X
Agree with Reservations XX
Ambivalent / Abstain XXX
Disagree but Won’t Block XXX
Veto X

Now it’s evident that only 1 director whole-heartedly supported the plan while 9 others had doubts or outright opposed it. Given this result, the group would undoubtedly have continued discussion until a more satisfactory plan was designed. Holding a preliminary, non-binding vote with gradients of agreement is an excellent way to discover what people are thinking as you work to build consensus.