Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm:

After a couple of weeks of “Will they or won’t they” palace intrigue involving Congress, the White House, the FBI and the DOJ, on Friday afternoon, the House Intelligence Committee finally released a four-page, declassified memorandum alleging that law enforcement officials had abused the Foreign Intelligence Surveillance process in obtaining a warrant to look in on the communications of former Trump campaign staffer, Carter Page, which served — the memo argues — as a precursor to Robert Mueller’s investigation of collusion between the Trump campaign and the Russian government. Based on all of the build-up, expectations were high in all quarters. When reporters and the media finally got a chance to read the memo, reactions to it served as a kind of political Rorschach test, with each side seeing what it expected to see: Conservatives were quick to herald it as a “worse than Watergate” moment that undermines the basis for the continued investigations, while liberals were equally swift in proclaiming it “a dud,” which is selective and misleading and still shows no abuse of process or illegality. The question is whether all of the mystery and intrigue worked in the memo-authors’ favor by heightening attention, or whether it worked against them by creating expectations that could never be met.

Litigators often face the same dilemma. Based on structure of trial, promises of what “the evidence will show” often proceed the actual evidence by days, weeks, or longer. And the suspense of waiting for that critical document or that key witness can have an effect on how that evidence is received. To be sure, there can be an advantage to suspense (for example, I’ve written previously about the advantages of a “but wait, there’s more…” kind of appeal). But it is tricky because the build-up can also be a liability. The increase in attention and interest comes at a cost if expectations aren’t fulfilled when the evidence is eventually presented. In this post, I’ll share some thoughts on three scenarios on how this can play out in trial or in politics.

1. The Suspense That’s Never Satisfied

At this point, the House Intelligence Committee’s memorandum is public, but imagine what would have happened if it never had been? For those opposing memo release, based on either the argument that it reveals intelligence methods or that it is misleading and selective, there was the reluctant realization that not releasing the memo could have been just as bad. Then it would been like the excluded evidence that a jury hears about but never gets to actually see. Speculation about what it “probably” shows would tend to favor one’s pre-existing biases, and the failure to produce the evidence is taken as a “broken promise” that reduces the credibility of the side that tried to get the evidence in.

2. The Suspense That Ends in a Dud 

On my initial read of the Intelligence Committee’s memo, I admit that I come down on the side of those considering it much ado about nothing, or at least, much ado about not much. There’s the fact that it’s not uncommon for sources used to justify a warrant to have their own ulterior motives, and that hardly invalidates the warrant, and there’s also the authors seeming to be coy about what the whole justification for surveillance, beyond the Steele dossier. Not everyone agrees, of course, but the underwhelming response in many quarters underscores the risk that suspense can backfire in trial as well. If the answer to “What’s in the box” falls short of expectations, then the message sent just ends up emphasizing the weakness of your case. For that reason, it is often a good idea to undersell an emerging piece of evidence and encourage jurors to feel like they are reaching their own conclusions on its meaning and importance.

3. The Suspense That’s Revealed As a Tactic

In the aftermath of the memo’s release, a lot of attention is focused on the fact that it was written up by the staff of Committee Chairman Devin Nunes, and much of it seems to be talking points drawn from what was already known. That has led some to suppose that the waiting and the “#releasethememo” campaign was really a tactic for channeling attention, as if the suspense and not the substance was the whole point. That is a message you don’t want to risk sending in trial. We expect and excuse a fair amount of gamesmanship in politics, but we at least hope for less in the courtroom arena’s search for truth. Being persuasive means making good use of all the tactics you can, but without ever telegraphing them as “tactics.” For that reason, you never want the jury to think that you’re keeping them in suspense just to keep them in suspense. The message should be that you’re getting them the vitals as quickly as you can, and that goal suggests that, rather than keeping them waiting, you should preview the bulk of your case in opening statement.

Other Posts on Perceptions of Evidence:


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