Rhetoricians (those Greek guys whose names we are supposed to remember, but we don’t), knew some stuff—good stuff, really. Especially in the area of convincing an audience to behave in ways the speaker wants. They would not be satisfied to say “Gerry Spence is a good speaker.” They would want to figure out why or how Gerry Spence gets his results. (This is not really about him, I just used his name because all trial attorneys seem to hold him out as the Gold Standard).
Aristotle discussed three persuasion factors that are directly related to the American trial system:
Blame is attributed in the past tense. Aristotle called this “forensic rhetoric.” This tense is usually divisive and threatens punishment. It has its place, but seldom leads to a controllable outcome.
Values are almost always discussed in the present tense. This tense tends to classify things into good or bad, people or groups who meet their responsibilities versus those who don’t, etc. “This practice is wrong,” or, “the designers are expedient.” Aristotle calls this “demonstrative rhetoric.” Again, it has its place, but usually leaves the audience divided. Who is ever really persuaded to change their values?
Choices should be presented in the future tense, which Aristotle called deliberative rhetoric. This is where you can make people go along with your goal for them. As the jury must take your case and go deliberate, it is good to give them a choice. They have to come to a mutually agreeable position (hopefully, your position), so being punitive (blame) and being divisive (values) will not help the jury act for you. They need an expedient way out of their dilemma—they need the future tense. For example, when you shout, “who used all the toothpaste?!” as you stand in the bathroom with nothing on and no way to clean your teeth, you are not really getting the problem solved. You are using a tense that implies blame. If the offender is brave enough to say, “I did,” does that solve the problem? No. But, what if the offender said, “well, the real question is ‘How can we keep this from happening again?’” Now you are on your way to a harmonious solution without all the tension that comes with blame.
Now, think of the punitive damage phase of an insurance bad faith case. You have assigned blame to the adjuster, the procedures of the company, etc., by using the past tense (here is what Know Insurance Co. DID). Then you assign them to the group of people who do not meet their responsibilities in society—not in the past, but as they sit there today (i.e., if you lied before, but haven’t lied lately, people still view you as a liar as you sit here today). Now you ask the “toothpaste” question, turning the tense to the future—“how can we keep this from happening in the future?” It is less about punishment (past) and more about prevention (future). Personally, I feel a very different reaction to “Who used the last of the toothpaste” than I do to “how can we keep this from happening down the road?”–both imply the same outcome, but the past tense keeps it divisive, while the future tense sounds like recruiting help for a harmonious solution. A divided jury ($0 in punitive—why should plaintiff benefit from some random behavior by others—to $10 million—that number might keep this from happening again) can only fight. A jury that says, “OK, this all happened, now let’s figure out how to prevent it from happening again” is no longer bothered by the past. They have accepted the past and now have an expedient way to get out of jury duty by working together on a solution that they believe will work. All they have to do is find a number—usually one that is between the extremes because those are the divisive positions—and they get to go home.
Remember, whoever tells the best story to the best audience wins.
(for more, check out Thank You for Arguing, by Jay Heinrichs and Aristotle: A Contemporary Appreciation by Henry Veatch)
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