Before I go on, a disclaimer is needed.\u00a0 I don\u2019t know Mr. Garrity, I stumbled on his book, and I found it cited only once in a LEXIS search.\u00a0 But Garrity professes to have conducted \u201ctwo years\u2026[of] academic and psychological research\u2026\u201d and begins his book with ample citations to resources for each of his elements. For rhetorical questions, he cites 12 authorities across a number of disciplines.\u00a0 That seemed to be a solid foundation to read further.<\/p>\n
What does Garrity urge?\u00a0 The gist is simple:<\/p>\n
Rhetorical questions are integral to the PERM system for one reason: They are as close to an actual conversation you can have with your jury.\u00a0 Rhetorical questions force jurors to engage with you.\u00a0 The jurors will answer your questions, albeit silently, but that is good enough.\u00a0 A century of psychological research shows that it is nearly impossible for a passive listener to avoid answering a rhetorical question.<\/p>\n
CLOSING ARGUMENTS, 2.<\/p>\n
There is at least one more aspect to Garrity\u2019s approach.\u00a0 He reasons that jurors are in some sense \u201clow-involvement\u201d audience members as the case outcome will not impact them, and then explains that \u201c[a] juror who is not naturally inclined to process your message is more likely to do so if you include rhetorical questions in your message presentation.\u201d\u00a0 CLOSING ARGUMENTS, 37.<\/p>\n
Garrity suggests a variety of forms of rhetorical questions:<\/p>\n
- \n
- ones that require a one word answer (Garrity\u2019s example \u2013 \u201cDid Mr. Williams bother to read the contract\u201d);<\/li>\n
- ones that require a multi-fact answer, but with those facts listed after the question is posed (Garrity\u2019s example \u2013 \u201cJust how hard did Sally Davis work to resolve this before coming in this courtroom,\u201d followed by \u201clet\u2019s look at the facts); and<\/li>\n
- ones that are a tag line to an assertion (Garrity\u2019s example \u2013 \u201cYou heard that Ms. Williams did absolutely nothing to help Christopher Edwrads after she struck him and saw him lying there, dying. Why?\u00a0 Why?<\/em>\u201d).<\/li>\n<\/ul>\n
So, that is Garrity.\u00a0 What about trial advocacy texts?\u00a0 A survey of several showed ran the gamut of possible responses:<\/p>\n
- \n
- Lubet and Lore\u2019s MODERN TRIAL ADVOCACY 6th<\/sup> edition mention s rhetorical questions only in regard to opening statements, with a warning that they are \u201cinherently argumentative\u201d and thus inappropriate. MODERN TRIAL ADVOCACY, 416.<\/li>\n
- O\u2019Brien and Townes, in TRIAL ADVOCACY BASICS 3rd<\/sup> Edition, give such questions a defense as a \u201cmarvelous technique when there is a key question to which you know your opponent has no effective answer. TRIAL ADVOCACY BASICS, 251.<\/li>\n
- Perrin, Caldwell and Chase, in THE ART AND SCIENCE OF TRIAL ADVOCACY, 2nd<\/sup> Edition, urge use of rhetorical questions as, when \u201cused effectively, the advocate controls the conclusion that the jury will draw, yet allows the jury to feel empower, as if they reached that predetermined conclusion on their own.\u201d ART AND SCIENCE, 449.<\/li>\n
- In the classic THE WINNING ARGUMENT, JoAnne Epps and colleagues describe rhetorical questions as \u201can excellent way to lead the listener [and]\u2026cause your listener to \u2026form conclusions that he can embrace as his own.\u00a0 WINNING ARGUMENT, 155.<\/li>\n<\/ul>\n
Other advocacy texts have little or nothing.<\/p>\n
[An interesting aside.\u00a0 There has been some positive discussion in the legal writing community of using rhetorical questions in brief writing and oral argument.\u00a0 See generally, <\/em>Simon, The Power of Connectivity: The Science and Art of Transitions\u00a0 , 18 LEGAL COMM.. AND RHETORIC 66, 73 (Fall 2021) https:\/\/www.alwd.org\/lcr-archives\/fall-2021-volume-18\/621-the-power-of-connectivity-the-scien%20ce-and-art-of-transitions<\/a> .]<\/p>\n
A survey of our advocacy community produced a myriad of responses, and they are appended to this article.\u00a0 The \u2018big picture\u2019 is as follows: out of 23 respondents, 20 were favorable and 3 were not.\u00a0 An interesting theme across both ‘camps’ was that such questions are dangerous if counsel does not also provide an answer<\/em>.<\/p>\n
Our colleague Gary Gildin, extremely knowledgeable about neuroscience, penned a cautionary note:<\/p>\n
From a brain perspective, the challenge for closings in general, and rhetorical questions in particular, is how not to undermine the success we already achieved by the System 1 persuasive force of our trial story by forcing the jurors to engage in System 2 evaluative thinking.\u00a0 Done properly, the opening statement told a story that the jurors\u2019 brains automatically and subconsciously found to be the best match to their life experience.\u00a0 Having found the satisfactory answer without unnecessarily wasting glucose, for the balance of the trial the jurors\u2019 brains welcomed evidence that confirmed their decision and ignored\u2014in fact, actively suppressed\u2014contradictory evidence.<\/p>\n
The last thing we want to do in closing is to induce the jurors to surrender their existing conclusion by prompting them to carefully consider and evaluate competing evidence.\u00a0 At the same time, \u00a0we do not want to sacrifice the opportunity to argue the flaws in the opposing side\u2019s factual story and the credibility of their witnesses.\u00a0 My current view is that the imperfect– but best available\u2014option is to first argue the flaws in the opposing case, ending with the transition \u201cwhy do these problems exist? Because that is not what happened.\u201d\u00a0 We then pivot to an uninterrupted, System 1 aligned recounting of our factual story of the case.<\/p>\n
\u00a0Rhetorical questions, in my view, are a System 2 tool.\u00a0 Therefore, I would use rhetorical questions only for specific evidence or witnesses in the Part 1\/flaws in the opposing case section of my closing.\u00a0 I would stay wholly in storytelling mode for Part 2 of the closing, the reiteration of our story. I suppose my proposed transition is itself a rhetorical question, one I would wholeheartedly endorse.<\/p>\n
I asked our librarians at Temple Law to help update the research.\u00a0 There was not much new, and certainly nothing that undercut Garrity\u2019s thesis.\u00a0 One article gave the issue an added facet \u2013 asking questions increased listener perception of the speaker\u2019s receptiveness.<\/p>\n
A person who makes declarative statements (e.g., \u201cthis new policy will boost productivity\u201d) could be seen as more firm or assertive than someone who phrases the same position as a question (e.g., \u201cwon\u2019t this new policy boost productivity?\u201d). By implicitly inviting input, a source who asks questions might be seen as more receptive to others\u2019 views.<\/p>\n
Hussein, M. A., & Tormala, Z. L. (2021). Undermining Your Case to Enhance Your Impact: A Framework for Understanding the Effects of Acts of Receptiveness in Persuasion. Personality and Social Psychology Review<\/em>, 25<\/em>(3), 229-250. https:\/\/doi.org\/10.1177\/10888683211001269<\/a> (Original work published 2021)<\/p>\n
Let me link this to a related issue \u2013 reactance theory.\u00a0 This was explained in a review of the book PERSUASION SCIENCE:<\/p>\n
People are usually more convinced by rea\u00adsons they discovered themselves than by those found out by others. By enticing the jurors to fill in the missing infor\u00admation, they will reach the desired conclusions. If you tell them, they will resist; but when they arrive at their own con\u00adclusion, it sticks because they have persuaded themselves.<\/p>\n
Persuasion Science, <\/em>56.\u00a0 Imagine a closing argument where the advocate does not say \u201cthe evidence demands<\/em> a finding of\u2026\u201d but instead hands that to the jurors with a soft \u201ccould those be the result of carelessness\u2026?\u201d<\/p>\n
This lesson is part of a broader one about \u201creactance.\u201d\u00a0 The author explains this in detail, with a personal experience driving it home:<\/p>\n
Reactance is the resistance to something that is perceived as a threat to one\u2019s autonomy or freedom of choice. Words like \u201cmust,\u201d \u201cshould,\u201d and \u201cneed\u201d are known reactance triggers. I learned this lesson during a mock trial. I was going through the verdict form and told the jurors how the questions should be answered. I had noticed that a young woman juror was paying close attention. I thought that I must have been very persuasive. Shortly afterward, while I observed deliberations on a remote monitor, I was stunned when she said, \u201cCan you believe that douchebag plaintiff lawyer telling us what to do?\u201d<\/p>\n
- O\u2019Brien and Townes, in TRIAL ADVOCACY BASICS 3rd<\/sup> Edition, give such questions a defense as a \u201cmarvelous technique when there is a key question to which you know your opponent has no effective answer. TRIAL ADVOCACY BASICS, 251.<\/li>\n
- Lubet and Lore\u2019s MODERN TRIAL ADVOCACY 6th<\/sup> edition mention s rhetorical questions only in regard to opening statements, with a warning that they are \u201cinherently argumentative\u201d and thus inappropriate. MODERN TRIAL ADVOCACY, 416.<\/li>\n
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