Pop Culture & the Law: The Telepathy Tapes

A friend recommended the podcast The Telepathy Tapes, an eight episode series about telepathic, nonverbal, autistic kids. The podcast has been at the top of the charts for months, even briefly dethroaning Joe Rogan for the top spot. After listening to the first episode I was fascinated and couldn’t wait to hear more. Midway through the second episode, I found my attention wandering. After the third, I stopped listening. And not because I don’t believe telepathy might be real. The concept is interesting and unique. As I reflected on why I lost interest, I realized there were valuable lessons for trial attorneys. 

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Mistake #1 - Too Much of Yourself in the Story

It’s a staple of podcasts for the host to put themselves in the story. I remember being obsessed with the reporting in Serial. The way Sarah Koenig would voice the same question I had in my head was incredibly engaging. It’s probably not an exaggeration to say every podcast since has been chasing the magic of that first season of Serial. In The Telepathy Tapes, host Ky Dickens shares her own thoughts and musings about the telepathic kids. But unlike Sarah Koenig, Ky Dickens is almost immediately sold on the premise of her show. She gives lip service to the idea that telepathy is unbelievable, but it does not seem genuine. She believes and she thinks you should too.

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Now part of this must be the result of how close she is to the story. On the podcast, we are hearing a condensed account of hours and hours of her time. You can tell she’s invested and passionate. Unfortunately, that doesn’t necessarily transfer to the audience. 

Attorneys have often worked on cases for years before they make it to trial. It’s understandable that the attorney will be invested and passionate. But, you can’t simply assume that your blood, sweat, and tears will have any impact on a jury. Jurors want to be convinced by the evidence. It can be helpful for an attorney to guide witnesses through their testimony with questions the jurors might be thinking à la Sarah Koenig. For example, you might ask something along the lines of “Earlier we heard testimony that the car passed an inspection. You testified that the maintenance fell below industry standards. Can you explain why the inspection was not sufficient?"

It is wise to anticipate questions and ask those on behalf of the jurors. That’s the key though. You are not asking the questions you might have (after spending years with the case), you are asking questions a person completely new to the facts might have. 

Part of this is going to be about tone. In The Telepathy Tapes, it felt like Dickens was sharing an inside joke that I didn't get. Almost as if she was shaking her head as she laughed, telling me I had to be there. It left me feeling frustrated because I wanted her to take me there, but instead she was the one on the journey.

Inserting yourself into the story is a tricky balance between being personable and engaging but also a stand-in for your audience. It’s worth mastering because doing it correctly can be the difference between jurors feeling like you’re reading their minds and jurors feeling like you’re trying to control their minds. 

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Mistake #2 - Confusion Instead of Curiosity 

The idea of telepathy is not overly complicated on the surface. Telepathy is communication between two people using solely the mind. While most people understand what the word means, it is not a concept that is readily believed. In the podcast, things are complicated because the kids are for the most part nonverbal and have autism. They also vary by age and location. 

Host Ky Dickens talks a lot about making an effort to keep the tests scientific. She orders her own supplies, instead of relying on others. Cameramen and other crew members give their take on things occasionally. But, it all adds up to clutter. There’s no organization to the episodes. It feels almost as if the whole thing is unedited. The audience ends up feeling like it's work to sift through it all. 

For stories to be interesting, we must care about what happens. Curiosity is what keeps us listening or turning the page. But there is a huge difference between curiosity and confusion. Jurors are taking time out of their lives to hear a case. The last thing they should feel like is that it's a burden to sift through the facts. It’s one thing to employ storytelling elements to maintain curiosity, but that should not be done if it leaves jurors confused. Confusion quickly gives away to frustration, which ultimately leads to disengagement. 

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Mistake #3 - Not Responding Powerfully to Skeptics 

Respecting a difference of opinion is a valuable skill. Criticism plays an important role in reasoning and problem solving. Loudly insisting that you are right is not the answer to skeptics. On the other hand, waving off criticism as a failure of the other side to see the same miracle as you is not an ideal approach. 

Critics of The Telepathy Tapes claim that the facilitated communication (a mother holding a letterboard for her nonverbal child) discredits the alleged telepathy. The critics are not entirely persuasive. But, neither is The Telepathy Tapes. The problem is that the burden of proof is with the podcast. Sure, the skeptics often point to the most obvious examples of collusion while ignoring others. But without a firm response from the podcast, I was left ambivalent. Maybe it’s true, maybe it’s not.

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That’s certainly not what you want your jury thinking. In the podcast, Dickens’ response to the critics didn’t work for me, in part, because of her attitude. She seems offended that someone would doubt the miracles she observed. That right there is an important lesson.

For credibility, you must take your critics’ positions seriously. Only by actually considering its validity, can you persuasively dismantle your opponent’s argument piece by piece. When Dickens attempts to address the critics’ charge of facilitated communication it seems like an afterthought. She is so in awe of her story that dismissing the skeptics is not important to her. 

It can be scary to give your opponent’s theory validity. Even saying their theory out loud might feel like you are admitting something. But you have to start there. Take your opponent’s argument seriously. And, then knock it down. In the end, there shouldn’t be anything left standing because you addressed each piece. 

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Mistake #4 - Losing your Audience 

My comments might seem unfair because I didn’t listen to the entire season. Perhaps in episode 8, Dickens firmly and definitively addresses her critics. But, that’s the biggest lesson of all. You don’t have a guaranteed amount of time with your audience. Once you’ve lost their attention, it’s nearly impossible to get it back. 

As trial attorneys, we have advantages that podcast hosts don’t have. We can watch our audience for signs that we are losing their focus. Adjusting in real time is one of the most important skills a trial attorney can have. The Telepathy Tapes is a good reminder that it’s unrealistic to expect everyone to share your enthusiasm for a story. If you lose your audience, your closing argument could end up like an unplayed episode sitting in a podcast feed, eventually buried by someone else’s story. 

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‍Leslie Hulburt is a co-founder of Hulburt Law Firm. She is an experienced trial attorney who has litigated cases against major corporations, manufacturers and government entities. In addition to the law, she has worked at the washingtonpost.com and as a garden teacher for elementary school students. These experiences give her a unique perspective on the most compelling way to present a case. Leslie finds inspiration in countless places, including movies, tv shows, books and podcasts. Pop Culture & the Law explores the ways our favorite entertainment can offer wisdom in the practice of law.

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