Lessons from High School Debate: “There is just so much offense”
Another high school debate season came to a close and it is time to take the lessons and think about how they apply to the fundamentals of jury trials. This is the first of two short treatments about what high school debate tactics can teach us about jury trial strategy. Judges in debate rounds are different than jurors, of course, but they are both, by definition, audiences. Audiences need to be persuaded, motivated, and armed in order to sign the ballot or verdict form in your favor. Reflecting on this debate season, two things stand out. First, there is the importance of “offense” (to be discussed in this short essay). Second, there is the importance of “weighing” (to be discussed in the next essay).
No, this is not an article suggesting your arguments should be offensive, as in upsetting to your audience. This is advocacy for offensive arguments, as in active and aggressive positions against your opponent. In a military strategy context, the best defense is a strong offense, as seen in the writings of Machiavelli, Sun Tzu, and George Washington. In Kung Fu, “the hand that strikes also blocks.” Or, in Clausewitz’s terms, “the strongest defense is a wall of well-coordinated blows.”
In a recent debate, in the disclosure of who won, the judges just kept saying: “There is just so much offense” from the “negative”; there are just too many reasons to vote against [the affirmative]; there are just too many “turns on case,” “it was all offense.” This was our strategy – no minimization, no defensive arguments, all offensive arguments. Of course, this is partly adapting to the time constraints in an academic debate. However, this lesson seems of interest to trial attorneys and has to deal with what are called “offensive” versus “defensive” arguments.
Both types of arguments are important. The simple distinction is that “defensive” arguments are arguments that minimize the impact or significance of an opponent’s position. “Offensive” arguments are arguments that “turn” the opponent’s position – they are arguments that are reasons to vote against a position in and of themselves, not reasoning to minimize (e.g., perhaps a reason not to vote for an opponent’s position). Of interest, offensive arguments cannot be ignored; arguments that minimize a position can be, because they are not reasons to vote “against” an argument. Defensive arguments are just ways to minimize the weight of an argument (which can be useful, but not necessarily definitive).
So, a quick example from a debate. Resolved: “A just government should recognize the unconditional right to strike.” A defensive argument to the resolution argues that an unconditional right may not resolve the fundamental problems in the power of management versus employees. An offensive argument, on the other hand, argues that an unconditional right to strike backfires and would reduce public support for those who strike, thus increasing support of management in strikes overall (a disadvantage to the proposal). The second argument cannot be ignored; the first may be because all it does is minimize the possible impact, it doesn’t “turn” the impact.
This has application, by analogy, to what witnesses can do under cross-examination and lawyers can do in openings and closings. Go on offense. Now, tone and style are always critical and not to be divorced from content. How this is done is as important, if not more important, than what is being done. One of the most aggressive lawyers we work with sounds like the most considerate.
A witness can listen to an adverse, closed-ended question and “turn it”; go on offense, at the same time they answer the question. So, for example, and in generic terms: “As long as we understand the context of X is the most important issue, yes you are right.” Or “I’m afraid you have oversimplified the issue considerably, but generally, you are correct.” These are answers which go on offense – as subtext, “context is the key,” and “you are taking a simplified approach.” However, at the same time, the opposing attorney gets their “yes.” This is done with an attitude of reasonableness and a focus on the “offensive” truth of the actual situation.
In developing case strategies for opening and closing, we regularly advise going on “offense.”
A defensive strategy of minimization allows the opposition to control the ground of the trial. Allowing the question to be deliberated to be the opponent’s question and minimizing (e.g., “We did not discriminate”) is dangerous. One of the lawyers we have worked with for over twenty years makes this simple principle the core of the strategy: Make the jury’s key question your question (going on offense). Control the question, and the process of deliberation, and you control the verdict (e.g., “The employee was terminated because of their inability or unwillingness to abide by basic standards of workplace professionalism”). This distinction is rhetorical and as such it is important; the primary rhetorical choices a trial attorney makes have a great deal of impact on how the jurors see the case and how to deliberate the issues.
Trial graphics can be defensive and/or offensive. They can minimize or they can attack and provide reasons to find for your client. A timeline, for example, can just present information or it can present information in a way that focuses on the weaknesses of your opposition, advancing your primary offensive themes, and arming and motivating jurors. Graphics are not just information, they are visual illustrations of patterns of evidence, previewing (in opening) or summarizing (in closing) offensive themes of the case.
This essay is not able to provide explicit detail about how to go on offense in your case; it is to encourage the reader to look for and develop the ways to go on offense. The application of strategy given the eccentricities of every case fact pattern is a creative process. Making your issues the issues that define the verdict answers and control the deliberation is the goal. How to do that is an exercise in creative thinking; think outside the briefs, and think like a juror. Trying the case to yourself and your colleagues is easy; trying the case to jurors who you not only need to persuade, but who you need to persuade and arm and motivate to persuade others on the jury is the trick.
Next blog on the agenda: “Weighing the evidence in a trial; the second lesson high school debaters can teach us about jury trials.”