VirtualCourthouse; Issue 4.6
Be a Persuader Not a Presenter
Judge Arthur M. Monty Ahalt
This Article was first published in the Prince George’s County, Maryland Journal/Newsletter
Be a Persuader Not a Presenter
Technology will help you to be a persuader ¬ not a presenter. One of the chief failings of today’s trial bar is the lack of the skill to persuade. Less than 20 percent of the trial attorneys are really skilled persuaders. That means that 80 percent of trial attorneys are presenters and not persuaders. Persuasion is the key element to winning a lawsuit. Persuasion is essential not just on the facts but also on the law. Nationally, the trial bar is coming to realize that technology is a powerful tool in achieving victory in the courtroom.
Technology programs are beginning to appear on every bar association program. The message is becoming crystal clear. Technology is an essential tool to winning in the courtroom. Technology is being used not just for the megatrial as it was two or three years ago. Technology is being used in the every day garden-variety cases that appear by the thousands each day in the courts of this nation.
Technology, however, will not help the presenter win in the courtroom. However, technology will have an enormous empowering impact on the persuader.
So how is it that a lawyer becomes a persuader and not just a presenter. How does a lawyer move from the bottom 80 percent of the class to the top 20 percent of the class.
Lawyers regularly come back to chambers after a trial and want to know how they did in their performance. Whether they have won or lost they want their performance critiqued. First, I point out that winning and losing a lawsuit is not a measure of professional skill. Good persuaders cannot overcome bad facts and law. Nor can poor persuaders destroy good facts and law. Moreover, the dynamics of a jury trial often allow a jury to overcompensate for poor lawyering. What trial judge has not been told by a jury ¬ “boy that lawyer was just horrible but we could not hold it against the client.” Often they even add “can we make sure the lawyer doesn’t get paid.”
Second, I tell the inquiring lawyer that to become a top-notch trial lawyer, you have to make it your professional zeal to study the art of persuasion. You need to make it the object of your attention every waking hour of the day. That means you have to read about the art, observe the practice of the art, study the art and practice the art. If you haven’t been to a trial practice week-long course, you need to put it at the top of your priority list. If your employer will not pay for it, you need to save the money and take a week’s annual leave. If it is essential, a true professional will make it their personal professional priority.
Third, you have to understand the elements of persuasion.
The elements of persuasion were first established 2000 years ago by Aristotle, the father of persuasion. Those elements are: (1) believability; (2) sympathy; and (3) logic. These three elements are controlled by the rule of first impressions. The judge’s and jury’s first impression of your case begins when your case first starts. Care must be taken to avoid poor first impressions. Impressions are primarily learned through sight and hearing, although at times the senses of feel and taste will come into play. Constant care must be taken to avoid words and actions which will create negative impressions. Considerable thought and effort must also be given to methods which will create positive impressions. The five primary rules of persuasion can therefore be state as: (i) first impressions; (ii) first impressions; (iii) first impressions; (iv) first impressions; and (v) first impressions.
Now with the rule of first impressions firmly in mind, let us examine with specifics how to apply Aristotle’s time proven three rules of persuasion.
Believability (ethos). The first task in presenting your case is to cause the judge or jury to believe that you are a credible person; a believable individual as opposed to one who exaggerates, overstates and uses half truths. A believable person is credible, trustworthy, plausible, authentic and dependable. A believable person is also fair. Fairness is demonstrated by treating your adversary’s case as important. What are the actions and words of a believable person?
Actions: (i) Dresses as if the event is the most important in life; (ii) stands when speaking; (iii) faces the person to whom speaking; (iv) engages judge’s or jury’s attention/eye contact.
Words: (i) Polite, respectful; (ii) truthful; (iii) direct and to the point; (iv) organized; (v) chronological; (vi) permissively repetitive.
Most of the Bar appears to be oblivious to the fact that their believability in their next case is established by their performance in their present case. If you misquote a case today, why would a judge believe you tomorrow. If you fail to tell a judge about an important case contrary to your position today, why would the judge believe you tomorrow.
Sympathy (pathos). The second goal in presenting your case is to appeal to the emotions of the judge or jury. Effort needs to be directed to causing the judge or jury to be sympathetic to you and your case. Sensitivity is the watchword. You must understand who the judge is, what the judge wants, where the judge has been, where the judge is going. Much like a salesman who finds out about his customer before the sales pitch is made.
Logic (logos). What are the logical reasons the case should prevail? Your case must have logical reasons to prevail. Your argument should be built line upon line, principal upon principal. Webster defines logic as follows: The science that deals with the canons and criteria of validity in thought and demonstration; the science of the normative formal principles of reasoning. Traditionally, logic comprises: (i)) the “doctrine of terms,” the principles of definition, classification, and the correct use of terms; (ii) the “doctrine of the judgment,” or principles of correct predication; (iii) the “doctrine of inference,” covering reasoning or demonstration proper. Logicians are divided in their conception of the content and significance of logic. The main tendencies and bodies of doctrine are as follows: (i) traditional or Aristotelian logic; (ii) modern or Epistemological logic; (iii) pragmatic, instrumental or experimental logic; (iv) psychological logic or psychologism; and (v) symbolic or mathematical logic.
You need to become a student of logic so that you can craft your arguments be it on the law or facts to have reasoned authority.
by Judge Arthur M. Monty Ahalt – June 1999