ABA Journal Blawg 100!
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Archive for December, 2009
Simple Jury Persuasion: The more things change…
Aristotle talked about the ‘three pillars of persuasion’ in his famous essay “Rhetoric”. He labeled the three pillars: logic (or fact), pathos (or emotion) and ethos (or credibility). We can still learn today from the wise men of old as is illustrated by the following update on Aristotle produced shortly after the turn of the millennium (McIntyre-Birkner 2001).
Pillar 1: Logic
Fact—to be believable, you must present truthful information and show how your facts (or logic) can be used to logically arrive at a conclusion.
Pillar 2: Pathos
Emotion—to be persuasive you must push your listener’s emotional ‘hot buttons’ in a way that supports your cause/desired outcome.
Pillar 3: Ethos
Credibility—you must come across as honest, sincere, knowledgeable, competent, capable, and trustworthy.
Building Aristotle’s three pillars of persuasion into your voir dire and case presentation is easier said than done. There are so many pieces of evidence, so many details, so many facts to be introduced that it is easy to lose sight of the goal to tell a logical, gripping, and credible story that allows jurors to understand what happened, how it was wrong, and how to make it right.
Remember to tell the story to non-lawyers: your spouse, friends; significant others; your teenagers; focus group participants; and others who can help you determine the most important elements of the story. Your goal is to bring clarity to the listener and to build their confidence in the action needing to be taken in order to right the wrong done.
Logic, emotion, or credibility alone are not persuasive—blending the three into a coherent frame will tell your story in a manner that leads the listener to action.
McIntyre-Birkner, R. (2001). “Communicating to persuade.” Occupational Hazards 63(6): 10.
A picture is worth a thousand words…
Pictures communicate tremendous amounts of information in digestible and comprehensible bits of visual data. Sophisticated concepts can be broken down into something anyone can understand.
Cutting $100M from the federal budget: See, for example, this classic YouTube video of what it means that Obama is going to cut $100M from the federal budget. Wow. It seemed a lot bigger when I heard it than it did when I saw it.
Lifetime risk of maternal death in developed vs developing countries: Don’t use pie charts—they don’t work well when trying to depict small numbers. Instead, use bar charts and columns to show the difference between 1 in 8,000 and 1 in 76. Look how clear those hard-to-visualize numbers become!
Risk of being killed by animals: What are the most dangerous creatures in the world? Would it be sharks, bears or lions? Surprisingly, no. The most dangerous creature is the mosquito (killing 3M/year)!
Pictures stay with us. They summarize information for us in a succinct and clarifying fashion. We remember them and integrate the learning we take from them into our stored memories and experiences.
When you have a technical, complex, or simply dry and tedious fact pattern, a picture (also known as visual graphics, infographics, or demonstrative evidence) can help jurors wade through the hours and hours of testimony in words and have a visual in mind as they consider the evidence. We’ve seen the powerful graphics and the weak. Images that hit and efforts that miss. Invest money in visual evidence and test it in pre-trial research. You’ll get invaluable feedback on the user-friendliness of the visuals and your message will be communicated clearly and carried into the deliberation room by each juror.
Different strokes for different folks
By now we’ve all heard about the different ways various people process information. Some of us are more visual, some more auditory, some more tactile, some kinesthetic—and so on. Yet we often get stuck in communicating in the way that is most comfortable for us. ‘Just the facts’ doesn’t work for everyone. And more and more, jurors are annoyed by what they see as ‘cheap theatrics’ or ‘emotional manipulation’ on the part of attorneys. Finding ways to get your information across in a way that is heard by as many of your jurors as possible is challenging, to say the least.
Another way to think about various jurors and what they need to hear/how they learn best is to consider a recent publication that identifies five basic personality styles and how to best persuade them (Williams and Miller 2002). The table below identifies five styles, their characteristics, and how best to persuade them.
|
Personality Style |
Characteristics | How to best persuade |
| Charismatic | Easily intrigued, enthusiastic, talkative, dominant | Focus on results. Make simple and straightforward arguments. Use visual aids. |
| Thinker | Cerebral, intelligent, logical, and academic | Use lots of data. Acknowledge all perspectives and guide them toward the one you favor. |
| Follower | Responsible, cautious, bargain-conscious, brand-driven | References and testimonials will be persuasive. They like the tried and true—has this happened before and what was the outcome? |
| Skeptic | Demanding, disruptive, disagreeable, rebellious | You need as much credibility as you can possibly garner to get through to a skeptic. Or have both sides agree to a cause strike. [Keep in mind that this person is as annoying to the other jurors as he or she is to you.] |
| Controller | Logical, unemotional, sensible, detail oriented, accurate, analytical |
Provide a structured and credible argument. Use expert witnesses. Don’t be too pushy. Efforts to ‘persuade’ will backfire.
|
Interestingly enough, despite how different these personalities may appear on the outside, they want very similar things: information from multiple sources, credibility of the presenter, and clarity. None of them want conclusions and there is ample indication (except for the Followers) that they can be quite annoyed (not to mention suspicious) if presented with conclusions.
Get help in fleshing out your case narrative. Identify the questions that remain and the holes in your story. Your task is to simply be competent, credible, likeable, and thorough in presenting your case.
Williams, G. A. and R. B. Miller (2002). “Change the way you persuade.” Harvard Business Review 80(5): 9.
Simple Jury Persuasion: Be credible
Most of us are not nearly as credible as we think. Harry Mills, author of the book Artful Persuasion (Mills 2000) tells us that the cornerstones of credibility are:
1) expertise, and
2) relationships built on trust.
Mills recommends that persuaders build trusting relationships by very simply making commitments and fulfilling them.
“Making commitments and fulfilling them.”
How very simple.
Five words, yet so hard to remember.
What it means is that you tell the jury in your opening statement what you the evidence will make clear. And then you present the case that does it. You don’t over-promise and you don’t ever hope they’ll forget. If your relationship is to be trustworthy—they have to know that you will indeed do what you said you would do.
Trust your case. Keep your word. Speak the truth.
Mills, H. (2000). Artful Persuasion: How to command attention, change minds, and influence people, AMACOM.
Witness Preparation: First impressions REALLY do matter!
Remember that famous study saying communication is 55% body language, 38% tonal, and 7% verbal? Turns out that is unfortunately a distorted (albeit widely disseminated) report of the study results. While non-verbal communication isn’t as powerful as that oft-repeated research version of an urban legend would lead us to believe, we do know that first impressions (often based on appearance rather than what is said) are powerful.
When it comes to witnesses, and how witnesses present themselves in the courtroom, this knowledge is beyond valuable. Mock jurors in pre-trial research make instantaneous judgments on character and personality by simply looking and listening. A recent project we worked on asked participants to assess an attractive young woman who had made some mistakes that became quite public. Mock juror assessments of her were remarkably consistent (and remarkably negative).
They overlooked her attractiveness and focused instead on her too frequent sniffing (“I think she just took a hit of cocaine”); appearing older than her age (“She looks pretty old for her age—like she’s used up”); and her apparent anxiety (“She is enjoying playing around with authority—she thinks she’s pretty smart and doesn’t take this seriously”). These impressions were not based on her words, but rather on how she looked and juror pre-dispositions to view her negatively.
Some new research enlightens us with updated information on how people make instantaneous judgments about others based on physical appearance alone. Laura Naumann and Sam Gosling led a study described on the Situationist blog where participants were asked to infer personality characteristics based on full-body photographs (not video). They were shown either a controlled pose (with a neutral facial expression) or a naturally expressed pose. With the controlled pose, traits were difficult to infer (although participants did a good job with extraversion and self-esteem). Photographs of naturally expressed poses were a different matter. Instantaneous impressions of naturally expressed poses were accurate for 9 of 10 personality traits (e.g., extraversion, agreeableness, conscientiousness, emotional stability, openness, likability, self-esteem, loneliness, religiosity and political orientation) they were asked to assess.
Gosling makes recommendations about how to communicate specific traits by varying whether you smile and how you stand (tense or relaxed, energetic or tired). Specifically, extraverts smile more, appear more energetic and relaxed, and appear healthy, neat and stylish. Giving witnesses feedback on how to relax their bodies, how to communicate energy, and how to seem likable and credible can give them more confidence and result in a more positive impression upon the jury.
As you are preparing witnesses, watch how they present themselves physically. Jurors certainly do.
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