Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Thursday, December 20, 2018

Thinking Thursdays: The Power of Distraction or Redirection in Persuasion

Margaret Hannon, guest blogger, Clinical Assistant Professor of Law, University of Michigan Law School

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Distraction is not the first thing that comes to mind when thinking about effective persuasion. Isn’t the aim of persuasion—and advocacy more generally—to try to avoid distraction? To the contrary, Professor Melissa H. Weresh argues that distraction and redirection are persuasive techniques that advocates can use effectively to influence results. In her article, “Wait, What? Harness the Power of Distraction or Redirection in Persuasion,” recently published in Legal Communication & Rhetoric: JALWD, Professor Weresh “studies how distraction influences results and whether there is therefore a potential for the intentional use of distraction, or redirection, in advocacy.” As a baseline, Professor Weresh defines distraction, misdirection, and redirection as “deliberately redirecting the attention of the listener with persuasive intent in mind.”

Professor Weresh connects the use of redirection in advocacy to principles from storytelling and psychology. All three hinge on the innate human desire for “equilibrium, or resolving uncertainty.” When redirection techniques are used to disorient the listener and shock her out of her equilibrium, a solution can then be offered that resolves the uncertainty and allows the listener to regain her control, leading to a solution that the storyteller wanted all along.

Professor Weresh argues that advocates are already using redirection techniques, even if they are not explicitly described as such. As advocates, lawyers use redirection by making choices “as to what to reveal or emphasize” to “orient the reader’s focus or attention,” which then “redirect[s] the attention to a persuasive result.” For example, criminal defense lawyers have multiple redirection strategies at their disposal. They can use explicit misdirection to create doubt about bad facts and law by “keeping relevant material out of consideration, confusing witnesses, or redirecting the flow of the argument.” With this strategy, the lawyer tries to “undermine the plausibility of the story offered by the prosecution and therefore to interfere with the coherence of the story offered by the prosecutor.” Criminal defense lawyers can also use more implicit redirection strategies, such as using closing arguments to recast the role of the jury as the protagonist. But the use of redirection is not limited to the criminal defense context. Professor Weresh also presents other redirection strategies that can be used more generally. For example, advocates may frame or reframe an issue to invoke the decisionmaker’s fear (“the reptile strategy”). When used by plaintiffs, it “seeks to pit the [decisionmaker] against the defendants by making the [decisionmaker] feel that the defendants’ actions and products threaten themselves, their families, and their societies.”

Redirection strategies, of course, raise ethical concerns. If lawyers are expected to be truthful, then how can they engage in misdirection? There is no bright line between true and false; instead, there is a continuum—some middle ground between absolute truth and deliberate misleading or misrepresentation. Ultimately, advocates must use their own judgment when considering how they can effectively, and ethically, use redirection techniques in their practice. 

Professor Weresh’s article pushes readers to consider how redirection could supplement approaches to advocacy and, more generally, to persuasive storytelling.

Special thanks to Alison Doyle for her help with this blog post.

https://lawprofessors.typepad.com/appellate_advocacy/2018/12/thinking-thursdays-the-power-of-distriction-or-redirection-in-persuasion.html

Appellate Advocacy, Appellate Practice, Legal Ethics, Legal Profession, Legal Writing, Oral Argument, Rhetoric | Permalink

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