Last month, I wrote about an old article of Professor Cass Sunstein's, on Outrage. In it, I mentioned that he discussed (albeit very briefly) an interesting idea, "rhetorical advantage." So, what does the term actually mean for folks interested in legal strategy?
What makes Professor Sunstein's usage in Outrage so interesting is that he describes rhetorical advantage more as a feature of terrain than a deliberate strategy. And, to this practicing lawyer, that makes a lot of sense. Any given group, be it appellate court justices on a particular circuit, or the jury pool of a particular area, has a set of shared assumptions and beliefs. (Call it "culture," if you like.) And those shared assumptions will make certain arguments seem more intuitive than others. This is what I think he means by "rhetorical advantage." And that has important implications for class-action practice.
Among other things, it explains why certain rhetorical strategies recur in class-action practice. Class actions themselves bring certain rhetorical advantages to litigation. They (at their best) promote efficiency. They pit David against Goliath. The plaintiffs are human beings; the defendants are usually faceless corporations. (I discussed some of this before here.)
But that terrain can be modified. Dan and Chip Heath, in their business bestseller Made to Stick, investigated why certain urban myths (like the "Kidney Heist," in which a traveling businessman comes to after a wild night in Vegas to find himself occupying an ice-filled bathtub, sans kidneys) stick around, while other demonstrably true facts just don't penetrate our brains. In the course of their investigation, they identify six characteristics of "sticky" ideas--that is, ideas that stay in your head, and stay with other people as well.
Those six characteristics, which the Heath brothers combine into the handy mnemonic "SUCCESs":
SIMPLE. Every idea has a core. Every one. (You might also call it a kernel.) The trick is to identify it, express it, and be ruthless about defending it. (Examples: Southwest Airlines, at its peak, was "THE low fare airline." It didn't waste time with ideas or strategies that didn't fit this one mission.) There's no question that "simple" is difficult (though not impossible) for lawyers defending class actions. After all, our primary story at certification is: "It's complicated." (And some lawyers simply insist on throwing the kitchen sink into their briefs. The Heaths call this kitchen-sink urge "The Curse of Knowledge.") But there's usually an underlying reason why a case is too complex; identifying that, and expressing that simply, can be an important too.
UNEXPECTED. Many, many things vie for our attention every day. As a result, many of us are expert at tuning out unwanted messages; we've got highly developed internal spam filters. If a message fits the same old pattern as the spam that surrounds us ("Attention K-Mart shoppers …" "Exits are located at the rear of the aircraft …"), we're likely to ignore it. But if it breaks that pattern:
"Hey you, the guy in aisle five, you're standing right next to our 50% off sale items!"
We're more likely to pay attention. And then we're more likely to remember.
CONCRETE. Lawyers (and other folks trying to get their ideas to stick) deal in ideas. And their primary vehicle for communication ideas is language. But as the Heaths put it:
"Language is often abstract, but life is not abstract."
It turns out that while abstraction may help us understand, it gets in the way of our remembering. Remember US v. Microsoft, the case that made David Boies's reputation? It's widely believed that the deposition of Bill Gates won that case. Why? In part, because it was a concrete image that people could come back to. Tying is abstract, and hard to get one's head around. A CEO looking shifty and sounding evasive, that's right in front of us. That's sights and sounds. That's concrete. And that's memorable.
CREDIBLE. Credible ideas tend to come from sources we can trust, or want to emulate. That's why celebrity endorsements work well in selling mass products. And it's why some judges tend to get more attention than others when they write opinions. But ideas can also have internal credibility. What does that mean? It means adding detail that enhances the credibility of the idea. Urban legends do this. (The Kidney Heist story got a boost once it was rooted in Las Vegas, because it makes sense an out-of-town businessman would do something stupid in Vegas.) From this perspective, by the way, plaintiffs' lawyers should be thanking the Supreme Court for Twombly and Iqbal. After all, what is "plausibility" but "buttressed with enough credible details?" Sure, it may be more work to file a case with visible signs merit, but they'd have to do that work at some point.
EMOTIONAL. We can probably all agree that people shouldn't litter. But, at the same time, "Don't litter" seems to be one of those pieces of message spam. We all hear it so much, it turns out many of us tune it out. Back in the 1980s, the state of Texas hired anti-litter campaigner Dan Syrek to figure out a way to get Texans to clean up after themselves. His (insanely successful) result: "Don't Mess With Texas," which the Heaths argue hit just the right blend of self-interest and regional pride to stay in people's heads. Want an example closer to home? Tort reform is a dry and abstract issue. Until tort reformers pointed to a lawsuit that awarded $2.86 million to a woman who scalded herself with McDonalds' coffee. The story was so useful at generating outrage about dumb lawsuits and excessive awards that 17 years after it happened, a former plaintiffs' lawyer still felt the need to direct a documentary to try to blunt its effect. The simple truth is, long after facts leave, emotional responses stay with us.
STORIES. It's conventional wisdom that people respond better to stories than dry recitations of facts. But the Heaths take that insight one step further. It's not just that lawyers should all learn to "tell a story." It's that stories work well at all levels of persuasion. The Heaths explore the fact that, in almost all work contexts, people learn as much (if not more) through shop talk as they do through employee manuals. And shop talk usually means war stories: "here's what I did, and here's how it worked." In other words, when briefing issues before a judge, it may not be enough to tell the story of this case, it's just as important to tell the story of a line of reasoning: "here's why we have adequacy," or "this is why the voluntary payment doctrine evolved, for a case like this."
(S)ticky. The Heaths use the analogy of Velcro throughout their book. Sticky ideas have hooks, the same way Velcro does. These six components, Simple, Unexpected, Concrete, Credible, Emotional, Stories, are the hooks that make ideas stick, even in a judge's head. And they tend to recur in successful class certification briefs. Go figure.