Generally speaking, the “exigence” refers to the needs or demands of a situation, as in “the exigences of city living.” However, within the fields of persuasive communication and rhetoric, the exigence has a more particular meaning. Theorist Lloyd Bitzer first applied that meaning in a 1968 piece called “The Rhetorical Situation” in which he succinctly defined the exigence as “an imperfection marked by urgency.” It is an important idea for persuaders of all stripes, including litigators, to understand. That is because persuasion is shaped by, and in turn helps to shape, a perceived exigence out in the world. Lincoln’s Gettysburg Address, for example, has a message that has carried across time, yet it is best understood through the exigence it speaks to: a particular point in the American Civil War and in the country’s development. Positing and speaking to an exigence is a key part of the ‘making of meaning’ that creates good rhetoric. When persuaders are conscious and strategic regarding that exigence, they are able to customize their appeal to the given moment, to be more responsive and effective.
Litigators, of course, may not have rhetorical designs that are as grand as Lincoln’s. But litigators do have a very practical need to create and address the motivations of their listeners. An audience of legal decision-makers — judges, jurors, arbitrators, or mediators — aren’t going to be passive just in “following the facts.” Instead, they’ll actively engage in forming a viewpoint. And part of that engagement is the question of what they’re acting for. That is, that engagement is shaped and motivated by their perception of an exigence. The idea of an ‘imperfection marked by urgency’ tends to be central for plaintiffs, but it can end up being missing in action for many defendants. In this post, I’ll look separately at what often counts as exigences for plaintiffs (which may not be all that obvious) and what counts as exigences for defendants (which may be implicit or overlooked).
The Plaintiffs’ Exigences
For civil plaintiffs, it might seem plain what the exigence would be. After all, people don’t file a lawsuit for nothing, they file it because, in their view at least, there is an “imperfection marked by urgency” that ought to be addressed by the courts.
So does that mean that the exigences are the plaintiffs themselves: The injury, death, breach, or other harm experienced? Not necessarily. When it comes to motivating fact finders, it helps to broaden your understanding of what the most relevant exigence might be for them. After all, the idea of helping an injured stranger may not be nearly as motivating as the idea of reducing some kind of evil that could affect any or all of us.
For that reason, the real exigence is often framed as the culprit, not the victim. The careless doctor, the dangerous product, the greed-driven corporation, and the untrustworthy business partner might all contribute in a more compelling manner to the situation that we want to remedy through litigation. So, in crafting your central theme, choosing your central characters, and framing out the lines of your story, it helps to aim it all at the most motivating exigence.
The Defendants’ Exigences
I believe that, generally speaking, defendants are a little less likely than plaintiffs to be thinking about an exigence. After all, they didn’t file suit and don’t want to come to court, and their preference is that things be left as they are. In the perception of many defense clients, the real exigence is just that someone is suing them, unjustifiably. That, however, isn’t an exigence that will motivate your decision-makers.
And it helps to think in those terms. In asking for a defense verdict, you aren’t just asking your fact finders to resist plaintiff’s appeal to act against you. You’re instead asking them to act for you. A defense verdict is also a message and an action. So it bears asking, “What does that action accomplish?” In other words, what would your judge or jury be accomplishing in siding with you? They’d be helping you, of course, but that isn’t a motivator for them.
Finding the better exigence might take some thought on your part. Maybe, in seeing the reasonability of the defense side, they would be taking a stand against the erosion of personal responsibility. Maybe they would be fighting back against the crumbling trust that we have in truth and objective facts. Maybe they would be enforcing the vital reminder that people are bound by their words. Maybe they are protecting the ability to innovate in the market and preventing a monopoly that restricts choice. The particular exigence will vary, but whatever it is, make sure you are speaking directly to that need, and adapting your theme, story, and evidence to that situation.