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THE PSYCHOLOGY OF PERSUASION
Paul N. Luvera
www.luveralawfirm.com
INTRODUCTION
In the world of public opinion, plaintiffs and their lawyers are losing badly. Untold millions have
been spent to change public views about plaintiff lawyers and damage cases. Giant industrial
concerns, insurance companies, the health care industry have all joined the Chamber of
Commerce in spending millions of dollars to produce a prejudiced jury pool. As jury consultant,
Amy Singer has pointed out, this powerful force is like the radio program of the past, The
Shadow, that possessed the mysterious power to "cloud men' s minds." You cannot escape the
Internet, television, radio, newspapers and magazine messages about juries being out of control
and the greed of their lawyers.
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But, tort reform bias is not the only thing plaintiff trial lawyers need to contend with. There is a
new awareness of how people make decisions. All of us in the legal field are involved, in one
way or another, with communication and persuasion. We need to be aware of the substantial
research that has been developed in the last few years about what motivates people in their
decisions and attitudes. The juror of today is not the juror of ten or twenty years ago, and the
client of today is not the same either. People do not receive information as they did in past years.
Jurors are not reading the newspaper or hard copy books as much as they are getting information
from the Internet and television. This kind of information is delivered pre-packaged. There is no
need'to think. The message does it for you. Plus, it comes with pictures and video. It is short, to
the point, and entertaining. In addition, jurors have already been programmed as to how a trial
should work. Absolute proof is produced on "CSI'' and other similar television programs. Crossexamination takes two minutes and goes right to the issue. Jury arguments last two to three
minutes, and tell a complete story in that time.
The marketing industry and political analysis have continued to have current research on how
people think, make decisions, and what motivates them to do what they do. Modem research in
this area isn't limited to focus studies and polling. It has become much more sophisticated, and
includes functional magnetic resonance imaging (fMRl). By connecting to the brain of subjects
while presenting information, researchers do not have to ask the subject their reaction because
they can see it for themselves. This kind of research has completely changed our long-held ideas
about how human beings think and make decisions.
RECOMMENDED BOOKS
There are a number of books that are not legal texts that help us understand how the human mind
works, especially in the area of decision-making. There are books that describe the latest
techniques for studying decision-making. Here are a few:
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The Social Animal by David Brooks - Explores the research of how people think and make
decisions. It is both entertaining and informative. The one message that the book makes clear is
that the great majority of decisions are made at an unconscious level, and then ratified by our
conscious intellect.
The book, Made to Stick by Dan and Chip Heath discusses six principles of a compelling
message. The book says they include: (1) Strip your ideas to the core - not sound bites, but
proverbs; statements that are both simple as well as profound; (2) Unexpectedness that grabs
attention helps convey the message. (3) Concreteness means making things clear. Ambiguity is
the enemy of communication. We remember concrete information; (4) Credibility is essential
for good communication. We all know how essential it is for the lawyer to have credibility; (5)
Emotions involve feelings, and feelings are a powerful tool. Most of our decision-making
involves an emotional reaction; and (6) Stories are the way in which humans have always
communicated. Telling a compelling story is a powerful way to communicate.
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Martin Lindstrom's book, Buyology: Truth and Lies About Why We Buy, describes the way the
marketing industry researches how people think, decide, and are persuaded. The book points out
that, instead of polling and surveys, modem marketing uses neuromarketing, that is functional
magnetic resonance imaging or fMRl. Subjects are connected to the fMRl machine, and while
they respond to questions or images, scientists look at the brain to see exactly what is motivating
the person. The book confirms that the great majority of decisions humans make are at an
unconscious level, and not with the rational mind.
One of the classics in the area of sales and persuasion is Robert Cialdini's book Influence:
Science and Practice. This book outlines the fundamentals of what causes people to make
decisions, especially with regards to purchases. The principle of reciprocity, which he describes
has so many applications to what we do as trial lawyers that each one would be helpful for us to
know and use.
Certainly one should be familiar with Frank Luntz, who has worked for the Republican Party as
their resource person on such areas as framing issues and outlines for Republican speakers on
various issues. His book, Words that Work is an excellent resource for words and phrases that
carry a subconscious message to the American public.
The Political Mind by George Lakoff is one of several books by Lakoff which lawyers should be
familiar with. Lakoff describes how we make decisions at a subconscious level and why people
decide as they do.
THE COMMUNICATION PROCESS
We must first remember that non-verbal communication is of extreme importance when trying
lawsuits. UCLA Professor Albert Mehrabian is known for his pioneering work in the field of
non-verbal communication. While there are conflicting interpretations as what percentage each
aspect of our communication contributes to the message, there is one thing we can all agree
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about. When there is a conflict bern:een the spoken word and the non-verbal message, the nonverbal always prevails. The way we look, our facial and body expressions, and the way we speak
all must be consistent with the words we speak, if we are to be believed. His research
demonstrates that the majority of communication is not verbal, but rather non-verbal.
We need to keep this important fact in mind when communicating with a jury. Even such subtle
situations as the non-verbal communication of squarely facing the person we are talking to by
pointing our heart towards the person in an open position can be important. Uncrossed arms (not
in the position of protecting the heart), and a coat unbuttoned with full eye contact can be a
significant factor in our communications with jurors.
Let us also remember people have a dominate way of receiving communication. Neuro-linguistic
Programming or NLP is one useful tool to assist us in communicating. Richard Bandler, one of
the creators of NLP, has defined it as: "NLP is an attitude and a methodology that leaves behind
a trail of techniques." It is simply one of the many useful models for understanding and working
with human behavior. We learn from this source that people generally have a dominate way of
receiving information:
55%
30%
15%
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Visual - picturing things in our mind
Kinesthetic - internal feelings
Auditory - internal talking to ourselves
While we do not have a single method of receiving and processing information, usually one will
dominate. Visual people prefer to talk and think in pictures. We should listen for the person=s
preferred method of communicating and talk to them in that manner.
NLP teaches that "the map is not the territory" - that is, communication is what people
understood us to say and not what we said or what we may have meant to say. All that counts in
communication is what the other person understood, and not what we intended or even what we
actually said. This is the reason for simplicity, brevity, and clarity in our communications.
We need to learn to become expert listeners. We should stop talking and start asking. Pro-active
listening consists of acknowledging that you have heard and asking open-ended (not closed)
questions: why, what, when, where, how, who. This is not repeating back what was said such as
"so you feel...", but active listening.
We also must keep in mind the limitations we have when it comes to giving and receiving
information. The communications we deliver in a court room need to move through "working
memory" and into "long-term memory." Our ability to absorb information is limited. We need
to present information clearly and simply, as well as repeat it in order for it to get from working
memory into long-term memory. Offering no more than three points at a time is a good principle
to follow. Less is usually more when it comes to persuasion. Communication is best given in
storytelling. The story has to be short, simple, and compelling.
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MOST DECISION MAKING IS DONE UNCONSCIOUSLY
The most important fact trial lawyers must learn to accept is that most decision-making is done
unconsciously. Lakoff describes lawyers and judges who believe jurors decide on the basis of
logical analysis of the evidence as "l 81h Century thinkers" because he says jurors make decisions
at an unconscious level. People are not even aware of the fact they have done this and always
offer a rational reason for their decision, even though it is not really why they decided that way.
Malcolm Gladwell in his book, Blink: The Power of Thinking Without Thinking documents that
90 to 95% of our choices and decisions are made at an unconscious level by instinctual reaction.
Frank Luntz concurs and says: "We decide based upon how people look; we decide based on
how people sound; we decide based on how people are dressed; and we decide based on their
passion." A trial is a battle of impression and not logic.
REPTILE THINKING
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Dr. G. Clotaire Rapaille is famous for his research and work in the marketing area based upon
the drives of the Reptile brain. That part of our primitive brain is concerned with two things:
reproduction and survival. Rapaille and others tell us that these drives are so strong they
overwhelm any other considerations. They also operate at an unconscious level. In jury trials,
the drive for survival is very important. The book Reptile makes clear that survival is the most
basic Reptilian motivator. When survival is not at stake, the Reptile is in auto pilot, but as soon
as survival is at stake, the brain shifts into survival mode and nothing else matters.
Therefore, rules become important because rules assist in survival by providing protection. That
is why conservatives and others believe laws must be obeyed whether we like them or not. Rules
are the primary way we survive in a dangerous world. Making people accountable enforces rules
and protects us from harm. Verdicts enforce rules.
Conservatives generally believe in the following principles:
1.
2.
3.
4.
5.
You must obey any moral, legal or ethical rule, law or obligation.
You are bound by personal responsibility for what you do.
Family values are very important.
Doing justice is more important than sympathy for someone.
You must obey the law whether you agree with it or not
There are two other things we should note in addition to primitive brain motivations. The first is
that significant life experiences play an equally important role in decision-making. When we
have an experience in our life that has a significant emotional impact on us, that experience will,
often unconsciously, control our reaction to a future similar fact pattern. However we reacted,
whatever conclusion we drew from the experience - good or bad - is going to color how we react
when we encounter a similar situation again. These past experiences may end up as part of our
deeply-held belief systems or value systems. Since values trump even our own self-interest,
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significant life experiences are of great importance. Jury selection should involve trying to learn
about these events in juror's lives.
The other factor to bear in mind is that, at an unconscious level, the primary question in the mind
of every juror is simply one of self-interest. Does the outcome of this case or the case itself have
any impact on me and my family? Unless you are successful in relating the case not to just the
parties involved, you are not going to have an outstanding result at trial. Every case you try
should incorporate the idea that it has importance, not merely to the parties, but to the jurors,
their families, and the community at large. This is key to achieving an outstanding result in your
trials or even, in some cases, to merely winning the case.
APPLYING REPTILE CONCEPTS IN TRIAL
David Ball and Don Keenan have done an excellent job of outlining in their book Reptile the
importance of Reptile motivation and the practical applications. They recommend that plaintiffs
show that the defendant""s actions constitute an immediate public danger and that a verdict for
the plaintiffs will reduce that danger. Since the ultimate goal is survival, safety and safe
practices are the way to achieve it. This case, you should argue, presents an opportunity to make
things safer by their verdict. In fact, the justice system is a public safety system. They go on to
suggest that the important points to be made at trial are that:
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1.
2.
3.
The defendant's conduct threatens everyone=s safety.
A proper verdict for the plaintiff will reduce the danger.
If a proper verdict for the plaintiff is not given, the danger will be increased.
Therefore, our job is to teach the jury safety rules that apply to the case and to show the violation
of those rules. We need to demonstrate that the greater the danger, the greater the care required;
that there were safety rules that applied in this case; that the defendant failed to follow the rules
by doing the job right; that the defendant violated a safety rule.
Ball and Keenan recommend that the plaintiff apply the "no unnecessary risk" rule. That is, no
one is allowed to needlessly endanger another. For example, no doctor is allowed to needlessly
endanger a patient, and a company making products is never allowed to needlessly endanger the
public. Where there is more than one way to accomplish the same thing, you must always select
the safest way.
TECHNIQUES IN COMMUNICATION
UCLA linguist George Lakoff has written extensively on communications. He has published
about the importance of "framing." How we express a concept has great significance. If the idea
is framed as "clear cut logging", we have a far different reaction than if it is framed as "renewal
of our forests." He has also documented how important metaphors are in our communications.
They serve as a shortcut to analysis. "The straw that broke the camel's back" is a classic
illustration of this idea. The phrase conveys a whole concept in one short statement. Lakoff and
others have made it clear that politics and trials are really about the moral values and beliefs of
the people deciding issues. Right versus wrong is involved in decision-making. We have heard
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much talk about "returning to moral values" during political elections. Translated, this refers to
adopting a code of moral conduct based upon moral beliefs about situations and facts.
Remember, the most important rule of communication is that it is not what you say, but what is
heard that matters. Communication is not what you say, it is what the other person heard.
LET'S START WITH YOU
All advocacy starts with you and not with some learned technique or memorized speech. What
are you projecting to the audience you want to persuade? Do you come across as a friendly,
believable, knowledgeable person they can trust? Or do you come across as a poor actor on stage
strutting and mouthing words you don't believe?
Learn how to deal with your nervousness, your fear, and your apprehension. Accept that these
three horsemen of insecurity are part of you. Learn techniques of doing your work in spite of
their .presence. In fact, learn to use them to better your performance.
Think about how you present yourself. Are you friendly? Do you conduct yourself as you would
with guests in your home? Do you want them to feel comfortable, to like you, and to want to
come back again? You need to communicate trustworthiness, warmth, and a sincere belief in
what you are representing to them.
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Your goal is to have the jury accept that you are a professional who takes your work seriously.
You are truthful and someone they can believe as well as trust. You believe in your client's case.
You are prepared and in control. You treat the judge and your opponent with professional
respect. Your conduct in court is professional and proper even though you are an advocate for
your client. You show the jury by your actions and words that you like your clients and believe
in their case.
We know from studies that have been done that credibility is a key factor in persuasion.
Credibility is composed primarily of: (1) trust; (2) competence; and (3) likeability. One must
project belief in the case and commitment to the client as part of this impression.
There is a 0 halo effect" associated with the advocate. If the jury perceives the advocate as
credible, then the case he or she represents likewise takes on the appearance of being credible as
well.
Words are your tools of trade. You need to speak in simple short sentences. Don 't let yourself
ramble as if you were thinking out loud. A void speaking mannerisms which irritate or distract.
Make it short, simple and to the point, whatever you are saying or doing.
You mus( capture attention and persuade in the first few seconds or you will probably fail to
persuade at all. That is why television advertisements are thirty seconds long and top story news
casts stories seldom longer than one and a half minutes.
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Impressions are formed quickly and people's attention span is limited by their exposure to
television. Television uses photos, attention getters, and short but simple messages. Viewers see
television trials such as "The People's Court," in which "trials" last very little time and are
followed with immediate but brief decisions. Trials depicted on television are filled with drama,
but are characterized by simplicity and brevity. People are conditioned by this media and come
to expect the same in the courtroom.
Power words are more persuasive than passive words. "Accident" doesn't say the same thing as
"collision" and "catastrophe" doesn't communicate the same feeling as "occurrence."
Body distance should be understood. All people have a zone of privacy around them and,
depending upon the relationship with another person, will react to someone invading that zone
by getting too close. Jurors are people who react to this concept. Learn to stay about twelve feet
away when you first deal with the jury. You should always avoid leaning over the jury rail and
over the seated juror. Be aware of this concept and sensitive to it.
When trying to persuade, remember that logical appeal has longer staying power than emotional
appeal, but a combination of both is the best means of persuading. Hate is not as persuasive a
motivator as love. A desire to help an injured plaintiff is more persuasive than a call to punish
the wrongdoer. On the other hand, a combination of both is a very good motivator.
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Since people have a short attention span, the message must not be too complex. If you make it
complex, the listener will simply "tune out" and probably resent you for confusing them. You
may never regain their goodwill or interest again when lost because the message was too
complex or lengthy to be grasped. Remember that the average attention span in complex cases is
a maximum of twenty to thirty minutes. After all, 15% of the brain is all that is required to
understand communications, and that leaves 85% to. daydream anyway. If you don't make it
simple, keep it interesting, and make it brief, you are risking the loss of attention of the people
you want to persuade.
Dress like a professional. That means shined shoes, clean neat clothes, appropriate hair style and
posture, which all communicate professionalism.
A trial is a battle o'f impression and not logic. When we were trained as lawyers, most of us were
led to believe that a trial was a battle of logic. The person who accumulated the most evidence
and whose position was most rational would prevail. In fact, we know from extensive studies
over many years that this is simply not true. A trial is a battle of impressions.
First impressions are made in the first four to six minutes in this setting. Make your first
impression a favorable one because you will never get another chance to make a first impression
again with this jury panel.
The advocate should try to project: (1) confidence; (2) the idea that they expect to prevail in this
case because they represent "right"; (3) belief in your case; ~d (4) the impression that you and
your client are a team. This is largely conveyed by appearing to be at ease in the courtroom. All
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of us are, in fact, nervous to some extent so it is important to learn to appear to be at ease even if
you aren't.
The jury essentially makes decisions on the basis of their perception of the facts rather than the
facts. They are persuaded by the impressions they form and then ratify these impressions with
arguments based upon reason and logic as they perceive it.
We must adjust to this reality in the manner in which we try lawsuits to juries. We must learn the
principles of psychology that convince and persuade people to our position if we are to be
successful advocates.
GIVE THEM A REASON TO FIND IN YOUR CLIENT'S FAVOR
Jurors don't vote money verdicts as a reward or out of sympathy. They vote in favor of a damage
verdict because they want to do the right thing. They want their jury duty to be meaningful. They
want.to do justice. They need a reason and a purpose for voting the way you ask them to vote.
They want to feel that somehow their jury service will make a difference and will mean
something. You must communicate how doing what you ask will result in doing justice, in doing
the right thing, and in making the community a better place for having done it. They want to feel
proud of what they do. Help them feel that way by showing them why a vote in your client's
favor will accomplish it.
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SWIM LIKE A DUCK AT ALL TIMES
People do not want their leaders to be worried, uncertain or defeated. Appearance is everything
and impressions critical. No matter what happens, remain calm and confident. Think of a duck. It
is very calm on the surface of the water, but underneath it is paddling like crazy!
Pause when something happens you don't want to happen. Think. Focus. Remember that a trial
is a series of battles and one battle doesn't mean the war is over. Relax. Courage is grace under
fire. No matter what you th.ink, it is not the end of the world unless you let it be such.
Without conceding, remember that honesty is the best policy. The unexpected answer may sting,
but to pretend it didn't happen without dealing with it is probably a bad tactic. Be up front and
meet the issue head on. Attitude and belief in your cause is a very essential component of
persuasion. You cannot try a lawsuit from your knees. Stand up to the issue with confidence.
Studies have shown that acknowledging the point and then showing why it isn't valid is far more
persuasive than denying the existence of the point at issue. In the end, it's all a matter of attitude
and how you deal with crisis.
YOU ARE AS IMPORTANT AS THE FACTS OF YOUR CASE
Good results for clients start with you as much as they do the facts of your case. You have to be
someone the jury will listen to and who projects an honest, sincere belief in your client's case.
That requires an attorney with the right motive in representing injured people. To be believable,
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your motive should not be greed or ego gratification, but a genuine desire to help people who
need assistance from you.
Real honesty is required - honesty about you, as well as your case with all of its faults. You can
only hope to win by being totally honest about what problems there are with your case. Those
things which you fear and wish were not part of the case. It is only by exposing them yourself
and presenting them from the standpoint of your client's case that you can hope to overcome
them. Try to conceal or mislead and they will always be discovered with a reaction that is deadly
to your case.
People can spot a phony instantly. All people have an inbred ability to feel the insincerity of one
who is trying to sell or persuade. You may fool some of the jurors for a while, but your lack of
sincerity will soon be sensed by the majority of the jurors.
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To start with, one must put themselves in the shoes of their client. They must understand and
fully appreciate everything that is involved in who the client is, what they are going through, and
how it affects them. As part of your trial preparation and trial techniques, learn to put yourself in
the position of the jurors, the witness, the judge and the defense lawyer. Try to see things from
their perspective so you can better deal with the issues and problems that occur in the case. This
is one of the important principles taught by Gerry Spence at his Trial Lawyer's College at his
ranch outside of Jackson Hole, Wyoming. The training doesn't emphasize trial technique as
most trial tr~ining courses do. Rather, the emphasis is on the character and attitude of the
attorney. Role reversal with professionals in psychodrama is an essential part of the program.
The program focuses upon stripping the lawyer of their masks and teaching them to be totally
open as well as honest in representing people. This approach is not only ethically correct, but
based upon proven principles of persuasion. We all need to learn this lesson if we want to
become better representatives of our clients.
ALWAYS KEEP YOUR PRESENTATION SHORT AND SIMPLE
Focus your case. Evidence is like an iceberg. The bottom may be huge, but only the tip is
significant. Find the essential evidence and keep it focused. Only a small amount of evidence is
truly important to the jurors. Identify the issues that count. Stick with those - over and over.
Ignore the rest. Be a story teller.
You should be able to describe your case as if it had to be sent in a ten word email. Years ago, a
lot of advertising was done on things the size of match books. A lot can be communicated in a
small amount of time or space. To assist in shortening the essence of your case, use a theme. The
jury will use shortcut reasoning to arrive at their decision. They will use short concepts
consistent with their value system. This means they will use their own theme if you do not have
one to offer that is acceptable to their reasoning process. Proverbs are useful in this regard. Use
simple and easily understood words.
Most important, tell a story - an interesting story. Your approach should be to tell the story first
and only then offer reasons why they should find in your client's favor.
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Use time lines to help the jury see the entire picture and to make it simple to understand as part
of your story telling about your case.
WHAT SHOULD OUR CORE MESSAGE BE?
We must have a basic message for jurors when we represent plaintiffs. A message that most
people agree with and will help us gets around existing bias in our specific cases. What is that
message? Considerable research has been done by ATLA and various state trial groups which
give us some help. This research suggests that people identify with these general themes:
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1.
In America, any citizen has the ability to make a responsible company or person
accountable for bad service or a defective product.
2.
Americans have the unique ability to change behavior of corporations and hold
them accountable for goods and services they provide our citizens.
3.
America is improved by holding people accountable for their behavior. We must
keep the justice system strong because it keeps people accountable and it
improves America by helping make changes for the better.
5.
The most powerful instrument of change in America is the civil justice system.
America improves in direct proportion to keeping its civil justice system strong
When we address jurors, we must emphasize the positive. These themes are what most
Americans already believe. We need to fold our case into this core message.
When we address jurors we must emphasize the positive. These themes are what most
American's already believe. We need to fold our case into this core message.
SECONDARY CORE MESSAGE
Research has shown that a great majority of people have some basic beliefs that are relevant to
our cases:
1.
2.
3.
All people are entitled to be treated justly, fairly and equally under the law.
Truth is good and lies are bad.
If a person owes a debt they should pay it.
Furthermore, we also know from research that jurors have some rather uniform and common
attitudes about their jury service. These include:
1.
2.
Jurors are genuinely interested in arriving at a logical and fair verdict.
Jurors genuinely want to "do the right thing" and make their jury service
meaningful.
We also know that overall approval is much higher for "lawyers who represent consumers" then
"trial lawyers" or "personal injury lawyers." The word "victim" doesn't mean to everyone what
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we think it means. "Victims" are the people who are sued by greedy lawyers in the minds of
many because, as they see it, people don't sue people - rather lawyers sue lawyers.
Therefore, how we use titles and words communicates different kinds of approval in the minds of
our hearers.
USE THE PROVEN TOOLS OF PERSUASION
There are some very powerful tools o{ persuasion that are well known to behavioral scientists
and those in the field of communication. These include analogies, metaphors, repetition,
rhetorical questions, double binds, rules of three and parallelism. 1
Analogies and Metaphors. All great trial lawyers know the importance of analogies and
metaphors in trial communication. All great speakers and communicators of history have
employed this device. One good analogy or metaphor can carry the case story to a successful
conclusion. For example "the smoke alarm went off and their solution was to take the batteries
out."
Expectancy Statements. You can create anticipation about key trial information by simply
introducing the subject by saying "You can expect us to ... (Bring the device into court for you to
see or show that...) In Psychology, this technique is said to have the listener unconsciously
waiting for the information in question.
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Rhetorical Questions. One of the time-honored techniques of effective communication is the
use of rhetorical questions. "Why didn't they just call the billboard company and tell them what
they had done? What were they thinking about when they made this very dangerous change and
decided to tell no one what they had done?" Rhetorical questions add impact to the presentation.
Dou~le
Binds. This involves characterizing information in an "either or" term that minimizes
sympathy for the defense. "Did the neighbor allow the dog to run loose because they were not
paying any attention to the obvious. or because they just didn't care about other people's safety?"
Rule of Three. We see important concepts presented in sets of three by communicators. "The
good, the bad and the ugly" is a set of three. It is more easily remembered and is more dramatic.
Important ideas can be repeated three times in the same way: "personal responsibility, personal
responsibility, personal responsibility, that's what this case is really about" is an example.
Parallelism. A rhythmic parallel structure in language is dramatic and more easily remembered.
"This collision was preventable. It was preventable because all the driver had to do was look.
Looking while driving is basic driver safety."
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CONCLUSION
Lawyers representing injured people owe a duty to their clients to keep up with the increasing
volume of marketing research information available to them. Consider the possibility of sharing
with your jury the full truth about your case, your concerns, and your fears. If a trial is a search
for truth, shouldn't the truth start with you as the lawyer?
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