Who Cares?

Abstract

Imagine you represent a criminal defendant convicted of second-degree murder stemming from the killing of his own father. Assume that a jury is charged with deciding the defendant's prison sentence and that you, as the defendant's attorney, are tasked with making a closing argument seeking the shortest term possible. You have been presented with two options as to how to do it: you can make a closing argument that uses rhetorical questions to summarize and reinforce key points, or, alternatively, you can use a closing argument that summarizes and reinforces key points through declarative statements.

Does it matter which option you choose?

A 1972 study using the above hypothetical found that jurors exposed to a closing argument that included rhetorical questions instead of declarative statements sentenced the defendant to a sentence that was more than one third shorter (from 6.6 years to 4.1 years) than those exposed to an argument that summarized using declarative statements. This study's finding is only a beginning. In the past four decades, social psychologists and consumer researchers have done dozens of follow-up studies exploring and advancing their understanding of the effectiveness of rhetorical questions and persuasion theory in general. From this research, which this article summarizes, readers can gain an understanding of how cutting edge science explains how persuasion really works and develop an approach for questions of how to best persuade.

The scientific research stands in stark contrast to the process by which lawyers and law students are presently encouraged to think about persuasion. The typical contemporary method suggests that advocates rely on hand-me-down, amateur psychology and guesswork. This article argues that this imperfect advice is an outgrowth of the teachings of classical rhetoricians, beginning with the ancient Greeks and Romans. This article holds that such advice was appropriate in the pre-scientific era, but that modern science can, and should, update and replace outdated advice on what it is to be persuasive and how one can be persuasive.

The lens of this article is the rhetorical question and its use in closing arguments, but the broader focus is on helping readers rearrange their whole approach to how one can, and should, think about being an effective advocate. At stake is the way the next generation of legal advocates will think about how to do their jobs. So, do you care now?