Trial Lawyer Lesson: The Risk of “So You're Saying”

 Posted on January 24,2018 in Uncategorized

Scott Greenfield has a post this morning that highlights a journalist's paraphrase, in an interview, of her subject's words.

This has become a ubiquitous problem, in media, on social media, everywhere (which is why it's ubiquitous). You say "it's snowing," and someone else responds, "so you're saying it's the worst blizzard ever?" Obviously not, but that puts you in the position of either responding by saying the obvious, "no, that's not what I said," and creating the appearance of defensiveness plus contributing to your statement being hijacked and taken down some dark, orthogonal path you never intended nor desired to go.

When I've taught jury selection lately, one of the open questions I've left is whether, in actively feeding back to a juror something that she has said, the lawyer should parrot or paraphrase.

Paraphrasing correctly shows an understanding of the juror's statement-not only do I hear you, but I understand you and can put it in my own words. ((When I'm teaching one-on-one and I'm not sure the student understands the lesson I'll ask him to feed it back to me in his own words.))

Paraphrasing a juror incorrectly, however, can be catastrophic. Because you and the juror are not equals in the transaction, and because there is an audience (kind of like an interview for publication) it's more likely to be seen as "trying to put words in my mouth" than "trying to understand."

The harm to your credibility of paraphrasing wrong is potentially devastating. At best the juror who thinks you're putting words in her mouth will tell you so and give you a chance to apologize. At worst she won't, and she will hold a grudge, as will all of the other jurors who perceived her statement to mean something different than you perceived.

The probability that you will paraphrase the juror wrong is also huge. Because we all, like Scott's journalist, tend to interpret what we hear through the filters of our existing desires and beliefs.

We hear, in other words, what we want to hear.

Probability ? harm = risk. The risk of paraphrasing a juror is huge.

The upside of paraphrasing a juror and getting it right is also large (He gets me!) but our innate cognitive biases lead us not to get it right, but to get it wrong.

So I'm going to close the question: When looping the juror's answers back to her, parrot rather than paraphrase.

Clean Language is a good read on getting a better view of a subject's metaphors by not imposing our own on them. And if you like that, you're going to love my next project.