If you read the title, you likely thought about it for a millisecond and formulated an answer or opinion. Whether you realize it or not, you became an active participant in my attempt to communicate. And not only did you actively participate, you did it of your own volition: I didn’t tell you to participate; it just organically happened.
The use of rhetorical questions dates back centuries. We see examples throughout the Bible (“Who made me a judge or divider over you?”), Shakespeare (“Shall I compare thee to a summer’s day?”), and throughout the advertising industry (“Where’s the Beef?”). And let’s not forget almost every politician in the history of the world (“Are you better off today than you were four years ago?”).
Rhetorical questions may end with a question mark, but they are not technically questions at all because the audience – whether a large group, small group, or individual – is not expected to actually respond. So why use them? (Like I just did.) There are a number of benefits in weaving a rhetorical question into your speech (or writing). And they all relate to persuasion.
Psychological research (and mock jury research for that matter) shows that people are more invested in an outcome when they reach the conclusion on their own, rather than simply accepting whatever conclusions they’re told to accept. Of course, in terms of courtroom advocacy, we obviously need to frame the argument in a manner that makes sense and supports the elements of law, but – in the spirit of Hansel and Gretel – it’s best to lay breadcrumbs along the way. This allows the decision-maker to feel like he’s giving careful consideration to the issues and forming an independent conclusion, rather than simply agreeing with the assertions you claim are true.
A rhetorical question can sometimes help lay those breadcrumbs. It may or may not have an obvious answer. And it can be used to assert or deny a position. But the highest and best use of a rhetorical question is to persuade. And they can be used in oral or written communications. So, heads up appellate lawyers: don’t be afraid to use a couple in your briefs now and then.
Here’s how rhetorical questions fit into courtroom advocacy:
They spark curiosity and interest.
As mentioned earlier, rhetorical questions create opportunities for engagement and participation. While the listeners (or readers) may not vocally respond to your question, the wheels inside their brains are turning – they’re retrieving memories, thinking about evidence, creating hypotheses, or brainstorming solutions.
These questions can be nuggets of pure gold during voir dire and Opening Statement.
In the jury selection phase, for example, you might ask something like this in a products liability case: “You wouldn’t intentionally create an unsafe condition for your children, would you?” The obvious answer is “of course not”, and you may or may not receive a juror response. But you don’t need an answer because the goal of the query is to spark a conversation about other critical issues. Unintended mistakes. Freak accidents. Or perhaps, user error or negligence.
They create a framework for new information.
During Opening Statement, jurors are learning about the nuts and bolts of your case (for the very first time, mind you), and they are trying to process a boatload of new information at warp speed. In any lawsuit, there will be a few specific areas where the use of a rhetorical question can help set the stage for what’s to come.
In an employment matter, for example, you might consider something like this:
“Throughout trial, ask yourself: Why would Mr. Doe choose to keep working at the very company he’s claiming treated him so horribly?” Pause for at least a couple seconds. This not only communicates importance, but it gives the jury a brief moment of time to consider possible answers. After a few seconds, then alert jurors that they will hear evidence to support that “why.” In this particular example, you might tease jurors by telling them that there are no records of any complaint; turnover is rare; and the company is on the “Best Places to Work” list. The rhetorical question (“Why”) provides a structure for what’s to come, and the subsequent information you provide supports the Why. And at the end of trial? A perfect segue into the jury charge.
They evoke emotion.
When jurors begin to personally connect with the issues, facts, and events, they often become more emotionally invested in the story. And evidence with an emotional element can be extremely persuasive. (Just ask David Ball, the man who’s made millions with the “Reptile Theory.”)
For example: In a trucking fatality case, simply telling jurors that the company’s driver caused the accident because he was speeding is one thing; incorporating a rhetorical question designed to evoke fear is quite another.
So, when using a photograph to show the damaged rig, you can add power to the visual by saying something like this: “How fast do you think this 80,000-pound vehicle had to be going to cause this kind of damage?” If you’re the plaintiff, you want jurors to conclude the driver must have been driving at an extremely high – and dangerous – speed. The image, coupled with the rhetorical question, becomes more persuasive than simply saying, “And the evidence will show that the driver was speeding.”
Like most persuasion tools, rhetorical questions should be used sparingly; otherwise the object of your persuasion might find them distracting and counterproductive. But, when used judiciously and effectively, rhetorical questions can be a potent way to engage your audience, create a sense of empathy, and, ultimately, guide them to view the case from your perspective instead of your opponent’s.