One theme that long-time readers of this blog will recognize is that persuasion is essentially self-persuasion. Rather than accepting what I call the "consumer model" of persuasion, in which an advocate presents a fully-formed position to an audience who either "buys" it or doesn't, I see persuasion as an act that requires participation from your target audience. People investigate their own solution. That investigation can be informed, framed, nudged, and influenced in a thousand ways but, ultimately, the route to your preferred outcome will be a route chosen by your audience, and not one that is simply dictated. Given that process of engagement, and given that role of choice, it also turns out that your audience's "self-talk" matters. How do they talk their way to a solution? It turns out that small differences in self-talk matter, and the use of rhetorical questions (like the one in the previous sentence) helps to motivate and engage an audience. A recent post in Psyblog highlights a research study (Senay, Albarracin, & Noguchi, 2010) that nicely demonstrates that effect. The research team, psychologists from the University of Illinois, asked participants to either question themselves ("Will I...") or make affirmations ("I will...") prior to completing a challenging task, and it turns out that the question is the more effective motivator. According to one author, Professor Dolores Albarracin, “The popular idea is that self-affirmations enhance people’s ability to meet their goals. It seems, however, that when it comes to performing a specific behavior, asking questions is a more promising way of achieving your objectives.”

While the study did not focus on a speaker's technique of asking a rhetorical question during a presentation, I think the research bears on the utility of framing a position using questions. The study suggests that these questions are an important part of motivation, and provides a reason to build them into a presentation. By asking, "Did the product cause this injury?" and then leading the audience through the answer, you are building in more activity and engagement for the audience than you would have if you had simply argued, "The product caused the injury" and then provided the reasons why. The first approach makes the audience active investigators while the second just makes them passive recipients. In this post, I will take a quick look at the reasons rhetorical questions work, and then share some thoughts on using them in opening statement and oral argument.

Why Do Rhetorical Questions Work?

In thinking about why rhetorical questions might be a uniquely suitable device for courtroom advocacy, it helps to think about where the audience starts. And it is fair to say that they start with skepticism. Jurors know that lawyers are there to take a position, and they believe (properly) that it is their role to see through any bias or misdirection that the lawyer is offering. To some extent at least, they expect the information to be slanted. In that context, a couple of principles are important to keep in mind.

An argument invites counterargument

Offer a skeptical audience an already-formed position, phrased either as an argument in closing or as an "evidence will show" style of preview in an opening, and the natural response is to start thinking of reasons why it might not be true.

A question invites a search for an answer

But ask a question, particularly one that is likely to be on the audience's mind as well, and you are more likely to touch off an honest search for information that will answer that question. Even if they are skeptical of you as a source, they still know that they need to answer that question, and if you can point them to the right information that answers the question, you are more likely to lead them to a position they'll trust.

Should You Ask Rhetorical Questions in Opening?

Yes. Every opening statement has the goal of providing the jury with, not just a preview, but a framework for organizing and valuing the information they'll be receiving throughout trial. For that, they will need a structure: a set of chunks or chapters. You could have topical or argumentative headings for those sections, like "causation," or "the product caused the injury," but it is more engaging to make those headings questions: "What caused the injury?" or "How could this injury have been avoided?" Using questions like that, not only verbally but also in your slides and other exhibits, you will prompt your jury's own thought processes while also avoiding the objection that you are being "argumentative."

Should You Ask Rhetorical Questions in Oral Argument?

Yes again. The rhetorical question is a good device for oral arguments for the same reason it works in opening statements: Because it activates the frame of inquiry rather than the frame of advocacy. But there is an additional reason why rhetorical questions are suited to oral argument before a judge, and that is that the question framework appeals to a judge's analytical approach. While a jury might be moved by the story or by mental shortcuts, a judge has a greater responsibility to weigh both side's arguments and, sometimes, to write an opinion that reconciles the two. In that setting, the thorough, legally appropriate, and fair use of rhetorical questions provides the judge with a useful way to frame her own questions, analysis, and opinion.

So, next time you are thinking of a way to structure your presentation, ask yourself: Should I use rhetorical questions? If not now, when?