Gerry Spence’s How to Argue and Win Every Time—which I read when I was 13 and remember as vividly as other kids remember To Kill a Mockingbird or whatever—has a whole chapter about how one of the keys to persuasion is admitting the weaknesses in your own case. Spence was a celebri-lawyer in the 1990s, he defended Imelda Marcos, and the example he uses in the book is a dude who got hit by a car crossing the street.
The guy was ruined-drunk at the time, and the prosecutor planned to use this information against him at trial. Instead, Spence, his lawyer, not only admitted that his client was drunk in his opening statement, but made it the center of his case. Who’s more deserving of the protection of the law than someone in a vulnerable, confused physical state? Spence won.
The more I think about the Rolling Stone case, the more I think the critical error wasn’t that the reporter failed to check out the details of the rape survivor’s story (though she should have), but that she didn’t tell us the weaknesses in it herself.
In other words, I wonder if we’d still be having this scandal if the RS article included a big fat caveat, if it admitted the limitations of this kind of reporting up front, something like
Look, we didn’t contact the people accused of rape in this story because Jackie didn’t want us to. Given the sensitivity of rape accusations and how traumatized she already is, we didn’t want to re-victimize her by potentially exposing her to more abuse by her rapists. Furthermore, we weren’t able to confirm some details of her account. Regardless, it is not up to us to investigate whether or not she was raped. That is the job of her university, and they have failed spectacularly.
I’m speaking from a counterfactual here, so of course I have no real argument that this would have made a difference. But one thing I’ve realized in the last few years is that when you learn a piece of information can be as important as the information itself.
This is (to make a totally inappropriate transition) I think what makes Serial so great and so popular. The host isn’t playing us clips and going ‘Look! He’s innocent! This is a travesty!’ She gives us the evidence from the prosecution, from the defendant, and goes ‘all of this could mean something … or not. Maybe he’s a misunderstood young man. Or maybe he’s a sociopath!’ She isn’t trying to simplify her case, she’s deliberately admitting the complexities and inconsistencies in it. And by doing so, she not only maintains the mystery of what happened, but of what kind of show we’re listening to. She’s bringing us into the reporting process with her, and giving us some of its power.
What’s happening now is that other reporters are re-doing the Rolling Stone article themselves, interviewing the accused rapist and other people who were there. We’re essentially re-investigating the case, en masse, in real time, and in public. There’s a good reason the justice system does not work this way—one, it is shitty, and two, it results in false certitude, each reporter defending their own source as the ‘credible’ one. Here we are focusing on the events of one particular night in September 2012. Meanwhile, the overall point of the story, namely that universities do not take rape claims seriously, regardless of their veracity, has been lost.
I wrote something earlier this year about how what got Jonah Lehrer in trouble, what makes Malcolm Gladwell so (occasionally) infuriating is this failure, to bring us into the process, to share the knots in their stories and their doubts in themselves to untangle them.
I don’t want to pile on Erdeley. She’s probably having the worst week of her life, and her sin—promoting a false anecdote to illustrate a real problem—is understandable, if not defensible. I just wish she would have shared it with us herself.