“Through patience a ruler can be persuaded, and a gentle tongue can break a bone.”
— Proverbs 25:15
“Persuasion is clearly a sort of demonstration, since we are most fully persuaded when we consider a thing to have been demonstrated.”
— Aristotle, Discourse on Rhetoric
This chapter will equip you to:
- Determine what is most important to your case and its successful conclusion
- Understand the importance of logic, emotion and credibility
- Comprehend the rule of first impression and it’s importance to your success
- Learn the principles of persuasion
There are two critical elements in the successful presentation of any case in court. The first has to do with the substance of the argument and the claim; does the evidence support the argument and is the claimant entitled to what he is seeking? These are the nuts and bolts of your case and much of the rest of this book will focus on these things to equip you to manage your case through the legal system to a successful outcome. But, the second element – persuasion – is at least as important as the first, and while we will spend the rest of this chapter discussing what it is and isn’t, you won’t hear one word about where to find more of it.
That’s because persuasion is a skill that you have to discover – and develop – from within yourself.
Persuasion is the single most important element you must provide in presenting your case. With or without lots of solid evidence and testimony, if you succeed in persuading the judge or jury, you will win your case. Likewise, if you are unpersuasive in your presentation – even if your case is woven through with heavy cords of undisputed evidence – you will surely lose.
Facts don’t just speak for themselves. The evidence in any trial needs a champion or advocate to convince the jury or judge. It isn’t just the facts, but the person behind the facts that persuades.
Almost 3,000 years ago, Aristotle, reduced the principles of argument and persuasion to their three core elements in his discourse On Rhetoric:
- Logos (logic, evidence)
- Pathos (emotion)
- Ethos (credibility, believability)
These are the tools the advocate uses to cause the judge or jury to find in their favor. Since judges and juries base their verdicts on perceptions of reality, the litigant must create those perceptions in their minds. How?
The skilled advocate can create word pictures in the minds of the judge and jury through the use of storytelling and logical language – building solid evidence line upon line leading to an inescapable conclusion. So the auto accident which has interrupted a students’ education becomes a story of a dream delayed. Using storytelling techniques, evidence and facts come to life and take on extra importance. So the rear end accident with an aggravated neck sprain taking two months to heal becomes more important because the dream of finishing college in four years has been lost. College will take an extra year. What is the cost of an extra year – financial, emotional, lost employment opportunities.
Elements of Persuasion
Logic, evidence (Logos)
This is what Aristotle considered the “proper task” of argument, because it tends to be the least subjective and most convincing element of rhetoric. As mentioned earlier, it is the weight of evidence that tips the scales in Lady Justice’s hand. Ensuring that weight is properly considered is the advocate’s role, but it is the weight of the logos, evidence, that will win the day.
In general, judges and jurors like their data hard. They are impressed by phone records, x-ray slides, photographs, bill statements and contracts and the like.
Emotional appeal, (Pathos)
The successful litigant must seize upon a judge or juror’s emotions, creating a certain gut-level appeal to win them over to his argument. If she is skillful, she can also arouse fear or hostility toward her opposition even while drawing back warm fuzzy sympathetic feelings toward her position.
“Forensic psychologists,” writes Houston lawyer Howard L. Nations. “Tell us that jurors make decisions on emotion and then sift through the evidence in order to validate their emotional responses with logic. In other words, jurors make a decision with their right brain and validate it with their left brain.” 
Credibility, believability (Ethos)
Establishing credibility is the litigant’s first task in presenting a case and is really an extension of the rule of first impressions (see below). Until that credibility can be accomplished, it is impossible to take the eyes of judge and jury off the litigant and fix them on the evidence where they should be directed. The litigant must assert herself as one who is authentically trustworthy, fair-minded, and believable.
A person with credibility is also a fair and respectful person and demonstrates this by treating his opponent’s case as important and by respecting the wishes and instructions of the judge. She also shows she is fair by not wasting the jury’s or the court’s time with trivial detours and unimportant detail. These are some of the traits a judge or jury will see in the credible litigant:
– Well-dressed, appropriately attired
– Is repetitive (as permitted)
– Stands to speak
– Is polite, respectful
– Is truthful
– Engages the judge/jury’s attention with good posture and eye contact
– Is direct and to the point
– Is organized
– Faces the person being addressed
During trial, the persuasive litigant operates in the judge or juror’s frame of reference rather than forcing the opposite. To enhance your persuasive abilities, try as early as possible to determine the frames of reference for the judge and jury. Observe the judge in pretrial activities if you can and evaluate the jurors as individuals during jury selection. Listen to their language for any clues to what would be important. The more you can learn and discover about the jurors and judges presiding over your case, the better you can enhance their perceptions of similarities, one of the keys to persuasion. Again, it is always better to operate within their frames of reference than to require them to operate in yours.
The litigant must be constantly aware of her message and presentation, specifically, how that message is registering on her target audience, the judge and jury. By employing a balanced presentation, concentrating rhetorical effort at each of Aristotle’s three elements, the litigant will deliver a compelling, persuasive case and all but ensure victory in court.
Rule of First Impressions And Preconceptions
Never forget the rule of first impressions. Constant care must be taken to avoid negative first impressions, which can and have many times, blown a litigant’s case to pieces before she has opened her mouth.
“Since jurors (and judges for that matter) form their perceptions early and tend to cling to them tenaciously, it is important to inspire the judge or jury early in the perception creating process if we are to have success,” writes Howard Nations in Powerful Persuasion. 
Broadly, many psychologists refer to this as the primacy effect, which generally means that impressions or other items of information recorded first are better remembered than information and impressions that follow. The ability to recall impressions gradually decreases until the end of a given presentation, when the recency effect takes over. The recency effect allows subjects to recall the most recent impressions more clearly than what was revealed prior. For that reason, you should always lead off and close with your strongest arguments, never bury them in the mushy (forgettable) middle.
The problem of first impressions – or opportunity, depending on your point of view –is that they are like concrete; liquid and runny at first, easily shaped and molded. But, like concrete, they will soon set up and become hard and unchangeable. The key for the litigant is to prepare in such a way as to shape that first impression – to give the judge and jury confidence that you are a credible, believable advocate – and that you and your claim are worth listening to further.
Don’t underestimate the power of first impressions.
These initial perceptions can carry such weight with judges and jurors that they may actually use them – whether consciously or not – to sift and sort through all subsequent evidence, discarding that which doesn’t conform to these early impressions.
Preconceptions are also core components of our thinking. Together they form the raw mass of our understanding of reality. Part of being human requires us to walk through life with volumes of preconceptions about life and reality, right and wrong, just and unjust.
Maybe in a perfect world, judges and jurors would weigh every case solely on its merits without regard to personal prejudices or preconceptions, but then again, maybe not, especially if we need and want the influence of the “better angels” of their natures, the angels of mercy and compassion, empathy and justice.
Preconceptions are part of the landscape and the skilled advocate learns to work with them, capitalizing on them when they offer an opportunity and minimizing them where they are a pitfall. Put another way, the persuader is careful to build a case that cuts with the grain of these preconceptions rather than against it.
Suppose, for instance, that you are questioning prospective jurors for a case that involves a serious automobile accident in which no one was killed or critically wounded, but which did result in severe damage to property belonging to you and several other parties. Knowing that the weather conditions were not the best the night of the accident – cloudy with rain and scattered low-lying fog – you might angle the questions during jury selection away from people who might have preconceptions about bad weather driving.
Since your objective is to recover property damages from the driver, you may want to bypass prospective jurors who have had similar accidents in bad weather conditions since they may have preconceptions that would favor the driver, as would those perhaps who are not private property owners.
But, if you knew that evidence emerging from the trial would indicate that the driver had a blood-alcohol content of twice the legal limit, which might radically alter the set of preconceptions you’re seeking in prospective jurors. You are a smart enough to realize that jurors will call up scores of different preconceptions as soon as they hear that alcohol was involved in the accident.
Preconceptions and first impression are exceedingly hard to change. The mere presence of contradictory evidence is usually not enough to change what amounts to a made-up mind. Seize the initiative in these areas earlier than your opponents. Once that territory is occupied it’ll pay big dividends later on.
Remember, it doesn’t take long for preconceptions to become decisions. And once the judge or juror has arrived at an emotional point of decision, forensic psychologists say they are all but beyond convincing and are looking instead for hard data and evidence to support their conclusion.
The Five Principles Of Persuasion
Good lawyers have long known that factors other than facts, influence jurors’ decisions. Trials are “an exercise in persuasion for the lawyers,” Professor Joel Cooper of Princeton University has said. Jurors and judges will ultimately “trust one communicator over another.” 
- The Principle of Reciprocity: We tend to want to keep short accounts with others in our circle of relationships – preferring to borrow our money from banks rather than friends, choosing to carry our own weight before we’ll hand it off to another – particularly among those we consider our friends.
Because of this element of social training our tendency is to want to repay a gift given, whether we like or perceive that we need the gift or not. Judges and juries apply the ingrained principle of reciprocity to parties in a trial if one has successfully created the impression of a burden or debt owed.
In a breach of contract suit, for example, you will want to demonstrate that the defendant injured your business by not fulfilling his side of the bargain. You as the plaintiff, endured risk and the loss of hard-earned earnest money and the judge will feel that you have been wronged and the defendant must make it right for not fulfilling his promises.
“I pay my debts,” you want the juror to feel. “Why shouldn’t this defendant pay his?”
- The Principle of Comparison: When two items or pieces of evidence are compared closely, the differences between them will become more evident and pronounced the closer the items are positioned, whether physically, or in your argument.
Comparing your loss of work time and job opportunities and transportation – say, in an auto accident claim involving a driver who ran a stop sign and clipped the rear quarter or your work truck – against your opponent’s relatively minor cost to repair his front end, (and make sure you mention that he didn’t even get ticketed for running the stop sign) and you have a contrasting loss that can help establish you burden in the minds of the jury and judge and arouse their desire to award reciprocal damages in your favor.
Be careful that your comparison draws the sought after contrast without conveying unintended messages or appearing nit-picky or petty.
3. The Principle of Friendship Bonds and Peer Expectations:
We all have peer relationships in various spheres of influence in our lives, ranging outward in intensity usually from family, friends, neighbors, coworkers, teammates and fellow members in the inner circles, to community members and fellow citizens in the outer circles.
Friends and family occupy our most intimate, central circle of relationships. The principle of friendship describes our willingness to do almost anything for those who we believe have our best interests in mind, those we consider our friends. It is this principle that motivates soldiers to heroic acts of valor on the battlefield, not that they are patriots or zealous believers in the flag or the cause, but more often it is simple that the man or woman next to them in the foxhole is a friend.
Many psychologists believe we will generally – like water seeking its own level – seek to fulfill the expectations, whether for good or not, of those in our community of relationships whom we respect. If someone expects us to perform in a certain way, or produce certain results, we are motivated to meet their expectations.
As a litigant, these elements are probably more at work in a jury’s decision-making process than you might be aware, perhaps less so with a judge. Penetrate the circles of relationship and connect with the judge and jury. Without coming out and saying so, appeal to them as friends and respected peers.
- The Principle of Association and Endorsement: We tend to like people who are like ourselves. We want to relate with others who are similar to us, with whom we feel a measure of kindred spirit. We may spend hours of additional leisure time with friends from work or school or church. We tend to empathize more easily with people who are like us socially, who are positioned like us economically, who believe as we do spiritually and morally. These similarities open channels of communication and avenues of persuasion.
Two authors writing in Trial Diplomacy Journal report a study of 600 jurors after reaching verdicts in multiple cases. Interestingly, every single juror – 600 out of 600 – reported voting to decide the case in favor of the litigant or side they “liked” more.
We also want to associate with those we respect. Advertisers have known for ages that consumers will buy products from celebrities because they like and respect them. Every year, billions of dollars in goods are sold in this country carrying the endorsements of people ranging from Charles Schwab to Michael Jordan. We seek affirmation from those we respect and we tend to react positively to the arguments of those we respect and admire.
- The Principle of Scarcity: This principle holds that people are more easily influenced by information or evidence that is scarce or in not readily available. Product promoters lace their ads with messages reinforcing the implied value of their goods with words like “limited offer” and “today only” or “while supplies last.”
Generally, jurors tend to retain more and become more attentive to the information they’re exposed to if they believe it is scarce or they may not have access to it again. Jurors will also recall this information more readily later. Thus the pro se should take time to stress the value of scarce information.
In a very real way, scarcity does elevate value in the marketplace – commodity traders and futures investors understand and work through this principle every day – and certainly the “shelf life” of information will contribute to its perceived value. It should not surprise the pro se advocate that juries award relative value to all the evidence they see and hear based on its scarcity.
A word about juries and objections. Several studies of jurors suggest that the principle of scarcity comes into play when litigants object to various bits of testimony or information during trial. Data from criminal and civil cases imply that objections during trial often tended to focus the jurors’ attention directly upon the disputed information – probably due of the principle of scarcity – especially if those objections were accompanied by orders from the judge to disregard such information.
Jurors tend to cling to objectionable information more tightly than they otherwise would, if the objecting advocate made no mention at all. By calling special attention to the material with a formal protest, objecting litigants run the risk of actually highlighting information in the mind of a juror they would rather have forgotten.
The thing to remember then about objections is that they often attract more attention than they deflect. Picture objections like a big red pencil. Yes, they illustrate what is wrong in an ocean of testimony, but they also underline that same information and focus attention directly upon it.
The Goals of The Advocate
In court your goals as a persuader are the same as any other case advocate: You want to inspire, influence and empower your judge or jury to decide the case in your favor.
In a sense you are playing quarterback in this role, dropping back to deliver the ball smartly up field to an uncovered receiver, or tucking it away in your fullback’s breadbasket so he can rumble three or four yards for the first down. You should see these trial decision-makers as teammates ready to execute whatever plays you call and churn up yardage toward the end zone. Your role is to call the right play for the situation and then drop back and deliver the ball.
Inspire the Decision Maker: Judges and experienced lawyers have long known that jurors – and the rest of the human race for that matter – make decisions by combining logical facts with emotional factors to reach conclusions – just like Aristotle observed thousands of years ago. What may be surprising is the order in which these elements come together.
Most forensic psychologists understand that jurors make decisions based on emotion first, and then sift through the evidence for information that validates their conclusion logically. While this validation process is essential – jurors will abandon a purely emotional appeal that is not accompanied by corroborating, validating evidence – they will also cling to these early perceptions tenaciously if properly reinforced.
You should also know that if you make an emotional appeal but fail to back it up properly, a juror is likely to punish you for leading him or her astray. Such jurors become doubly hard to convince with even the most compelling argument, while often they will redirect their favor to your opponent.
Additionally, jurors can arrive at decisions using what psychologists call central cues – information processed which is central or integral to the case – or through more roundabout means, using peripheral cues. Peripheral cues are elements of information not logically related to the central issue. So, where central cues relate directly to the evidence in a case, circumstantial or conclusive, expert or eyewitness testimony for example, peripheral cues acting on a juror’s decision-making process are not directly related to those core components. They might include everything from how attractive the litigant appears to the juror, to how long-winded the questioning becomes around the noontime lunch hour.
Generally, when the arguments confuse the juror or become difficult to understand, central cue logic recedes and peripheral cue decision-making comes to the fore. Fatigue, distraction and intellectual disengagement can also cause jurors to abandon central cue decision-making. You should watch carefully for warning signs indicating that you’ve “lost” your listeners, even if it means throwing out your carefully constructed presentation in favor of something more … provocative. Many times less is more.
Influence the Decision Maker: Take a minute to read the following quote.
“First, influence occurs when a source deliberately tries to change a receiver. Second, persuasion occurs when a source deliberately uses communication to change a receiver’s attitude. Third, an attitude is a person’s evaluation of an object of thought. … Any time a source deliberately attempts to change a receiver’s thoughts, feelings, or behaviors, influence has occurred.”
— Attitudes Drive Behavior: Prof. Steve Booth-Butterfield, W. Virginia University 
Working from the professor’s definition, influence occurs when the advocate deliberately tries to change the thinking of judge and jury. The key determinant in that equation is the judge or jurors’ attitude. Since the Creator has endowed human beings with free will we won’t get far in life trying to force others to do what we want them to do.
Before we can influence others to think or believe or behave in a certain way, we have to work first on their underlying attitudes. Most often, people make the vast bulk of their decisions based on this structural framework.
Think for a moment of the major shift in attitudes among ordinary Americans on cigarette smoking for example. Once, as recently as the early nineties, the tobacco lobby was among the most powerful interest groups in this country, inspiring awe and fear among the ranks of elected officials. The political fortunes of many lawmakers over the years were won or lost on how they came down on big tobacco.
For decades, ordinary Americans smoked where and when they pleased – in offices and restaurants, at home and at school – without fear of the management asking them to tamp out their butts. People even used to smoke in movie theaters and airplanes. What happened? Attitudes changed. Why? Because study after study showed the harmful effects of smoking. Public health officials like the Surgeon General and others in the medical community declared open warfare on tobacco use. Anti-smoking activists took up the crusade, demanding the right to breathe smoke-free air. They pushed until it gave and over time, attitudes changed
Techniques of Influence
- Priming: People can be trusted to return their thoughts to a target issue through effective use of the “priming” technique. Priming uses subtle messages early on in the set-up stage to get a juror thinking about the issue in a substantive way without overtly referencing back to elements or aspects of the case at hand.
If you were litigating a case for increased custody of your own children for example, you might seek to prime the court decision-makers, perhaps by mentioning a recent study of the benefits of two-parent involvement in the lives of children.
2.Credibility: People are more readily influenced by a source they believe and perceive to be credible and jurors are no different. They search for and appreciate credibility and can listen longer and give more weight to an advocate they regard as trustworthy. Judges and jurors tend to evaluate a litigant’s credibility based on several issues:
- Personal appearance – appearing both professionally competent and approachable
- Personal confidence – secure in your own skin
- Personal presentation – using powerful language and speech techniques such as analogies, metaphors, repetition and word pictures to convey a solid grasp of the issues and sense of direction
- Personal competence – qualified and expert in the field of subject matter, you know what you’re talking about 3.Consistency: The quickest way to destroy your credibility in the eyes of the judge or the jury is for them to realize some inconsistency in your case or presentation. Have you ever been reading a story or watching a movie that was otherwise engrossing only to catch the authors in a glaring inconsistency. For most people, that moment marks the abrupt end of their willingness to endure the reading or the watching. Instead, the inconsistency becomes the sole focus of the rest of their attention and likely the only they will share with others about the story.
Human beings crave consistency. It is expected and practically universal among us and we use it to govern fashion our understanding of the world. Because of this, when it is derailed by some glaring inconsistency, we tend to spiral into a condition known as dissonance – the mental equivalent of a train wreck in which we sputter in confusion and stop and wait and back up and search for some consistency to just where the wheels rolled off the tracks so we can figure out the inconsistency.
In any trial jurors weigh reams of incoming data – information often confusing and contradictory – sifting information and discarding what doesn’t fit their perceptions or is otherwise incongruent.
Remember the O.J. Simpson trial when Simpson tried on the black gloves, the ones found at the murder scene? The gloves seemed a little snug to the jurors and there was some question whether the gloves were even the right size for his hand. Johnny Cochran, Simpson’s lawyer, played the situation toward the jurors’ doubts urging them – “If the glove doesn’t fit, you must acquit?”
4.Inoculation: Prof. Butterfield comments that the Korean War was the first war that involved American servicemen in what became known as brainwashing. The public, at a loss to explain seeming acts of treason by American POWs, came to believe that some clever cocktail of physical deprivation and torture was responsible. Actually, as Butterfield writes, “The evidence suggests otherwise. The brainwashing sessions did not necessarily include torture, but rather featured a lengthy debate between the captured soldier and a skillful questioner. And the debate was about America and American beliefs about freedom, democracy, and equality.”
“Amazingly, many of our soldiers had great difficulty defending their political and social beliefs. They believed that democracy was the best form of government, but they could not explain why this was true. And their captors merely attacked these simply held beliefs until the soldiers began to doubt their validity. After that the road to ‘treason’ was easy.” 
The process of brainwashing or thought-reform as students of the technique call it, is organized into sets of tactics designed to separate the subject from their own psychological identity. Margaret Singer has written extensively on the use of thought reform by cult groups to recruit and maintain members. Three of those tactics include:
- Destabilizing a person’s sense of self
- Getting a person to drastically reinterpret his or her life’s history and radically alter his or her worldview and accept a new version of reality and causality
- Develop in the person a dependence on the organization, and thereby turn the person into a deployable agent of the organization 
What was the answer to protect American servicemen? Inoculation. Attack a soldier’s belief system early on and in small doses during basic training while simultaneously administering the information he needs to construct a defense for his belief system.
Just like in medicine, belief inoculations can be powerful influence enhancers and best of all they are dual-use weapons. They can be used on offense to strengthen a judge and juror’s existing preconceptions, reinforcing groundwork already established, or they can be used on defense to blunt an opponent’s expected attack. Inoculation is particularly effective when delivered with humor.
Empower the Decision Maker: Judges understand their powers; most jurors do not. Most jurors think of their decision making abilities as merely advisory, that if they award damages that are too heavy or too light, the judge or the “system” will figure out what’s right and make it correct. You as the advocate (as well as the individual likely to have to live with their decision) must take it upon yourself to make the jury understand their power.
*Note: It probably doesn’t hurt to remind the judge for that matter, since any discussion of his powers in the case will likely give you an opportunity to reinforce in detail why you’re entitled to your claim.
 Powerful Persuasion, Howard L. Nations, Houston Texas, copyright 2003, Law offices of Howard l. Nations
Powerful Persuasion, Howard L. Nations, Houston Texas, copyright 2003, Law offices of Howard l. Nations
 Frontiers, Newsletter of the National Science Foundation, Has The Jury Decided? October, 1997
 Steve’s Primer of Practical Persuasion and Influence, Prof. Steve Booth-Butterfield, West Virginia University, 2002
 Steve’s Primer of Practical Persuasion and Influence, Prof. Steve Booth-Butterfield, West Virginia University, 2002, Chapter 8, Inoculation
 Cults In Our Midst, Margaret Thaler Singer, Jossey-Bass Publishers, Chap. 3, The Process of Brainwashing, Psychological Coercion, and Thought Reform