Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm: 


You’re forgiven if you didn’t notice, but for the past couple of years, the General Mills cereal called “Trix” has been available only in a “heathier” version. That means that it kept all the sugar, but lost the artificial coloring, using vegetable and fruit ingredients instead. Apparently, there are some fans of the cereal who are old enough to send emails and post to social media, and those Trix fans complained that the new colors are dull or missing (nature apparently couldn’t replicate the blue or the green in Trix, so those colors were pulled from the new version). Finally giving in to the complaints, General Mills announced last week that they would reintroduce the old bright but artificially-colored version, and even follow the Coca-Cola route of calling it “Trix Classic.” 

All of this is detailed in a recent story in The Washington Post, and serves as a cautionary tale of audience analysis. With more than half of Americans wanting fewer artificial ingredients, one might think that moving to a more natural version of Trix was a solid business move. However, this is a case of what is true of the aggregate not being true of the subset. Bottom line, it turns out that if you are one of those who care about artificial ingredients, then you’re probably not one of those eating Trix in the first place. It seems simple when you consider it that way, but the mistake of misjudging the audience and, more specifically, imputing the general to the particular, is a mistake that can be made in litigation as well. Without being conscious of it, lawyers might also be strategizing and speaking to what may be generally true, but not necessarily true in the specific audience. In this post, I’ll share an applicable rhetorical concept, the Universal Audience, and share some thoughts on ways litigators can avoid the assumption that what’s true of the many is also true of the few.

The Idea of the ‘Universal Audience’

Drawing from the ancient rhetoric of folks like Aristotle, the 20th Century rhetorical scholar Chaim Perelman was the first to emphasize the idea of the “Universal Audience,” describing it as a figurative audience that includes all rational beings who are potentially reacting to a persuader’s message. The notion is that arguers implicitly gear their arguments toward an “audience” that is conceptual rather than real. In deciding whether an appeal is effective and correct, the persuader tries to ensure “that the reasons adduced are of a compelling character, that they are self-evident, and possess an absolute and timeless validity.” Ultimately, whether it is made explicit or left implicit, the idea of a Universal Audience tests the ethics, the argumentative soundness, and the persuasive force of the message. Before taking the message to a particular audience, we test its reasonability against that ideal of a generalized audience.

The Problems of Universalizing Your Litigation Audience

As an idea, it is easy to see how the Universal Audience can be a useful reference point. but as a substitute to thinking about the actual audience, it can be dangerous. Ultimately, of course, persuaders will face a particular and not a universal audience. That danger of distraction can be especially acute for litigators, in part because the bulk of the preparation time is spent without knowing much about the actual audience. You know there will be a jury, and you know the venue it will be chosen from, but you don’t know who will show up that day, and you don’t know who will survive the mutual exercise of challenges and strikes until the smoke clears and the real audience is sworn in.

That lack of knowledge persists through the long lead-up to trial, and that tempts counsel to test their case against their own mental composite and estimation of what the eventual audience is likely to be. And this construct is also prone to idealization. That is, if you are continually thinking about a universalized sense of what a reasonable jury will think, then one’s own biases will start to ensure that those ‘reasonable jurors’ start to look a lot like you. Instead of serving as a description of what an actual audience would do, it becomes a prescription of what your preferred audience should do.

What you need is a reality check, and you need it long before you meet the actual audience.

The Solutions

Particularize Your Audience for Case Assessment

When assessing a given case’s strengths and weaknesses, find actual people to test it against. Run a focus group or a mock trial. Don’t pretend these groups are the actual jury, because they aren’t. But, as long as you follow the recognized best practices in finding and forming the groups, you can use these jurors as a realistic basis that is better than your own hunches and assumptions. 

Know and Speak to Your Actual Audience

It should go without saying, but learn as much about your actual jury as your voir dire conditions permit. Knowing that the questioning constraints aren’t always ideal, particularly in federal court, you can still make use of new abilities to learn more out of court, such as big data applications and social media. And once your actual jury is all selected and seated, prepare a chart that shows the seated jury and includes everything you learned about the panel. Keeping that chart at counsel table serves as a great reminder to the attorneys and the expert and fact witnesses that they’re speaking to actual people.  


Other Posts on Audience Analysis: 


Photo credit: theimpulsivebuy, Flickr Creative Commons, edited.