Psychology of Persuasion

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Transcript of Psychology of Persuasion

PSYCHOLOGY OF PERSUASION

R. Doak Bishop Sashe D. DimitroffKing & Spalding1100 Louisiana, Suite 3300 Houston, Texas 77002 (713) 751-3200

ADVANCED CIVIL LITIGATIONMarch 22-23, 2001Houston

March 29-30, 2001Dallas

TABLE OF CONTENTS A. B. Introduction..........................................................................................................................1 Voir Dire ..............................................................................................................................1 1. The twin purposes of voir dire .................................................................................1 a. Gathering information..................................................................................1 b. Advocating your case...................................................................................3 (1) Use a theme......................................................................................3 (2) Come up with a theme that is short, simple and memorable ...........3 (3) Use the "power of threes" ................................................................4 (4) Use the same theme throughout the case .........................................4 (5) Use visual aids .................................................................................5 Principal factors of persuasion.................................................................................5 a. Controlling the jury's impression of the facts ..............................................5 b. Controlling the jury's impressions of your client.........................................6

2.

C.

Opening Statement...............................................................................................................6 1. 2. The importance of a strong opening ........................................................................6 Be persuasive by telling a good story ......................................................................6 a. Tell the story chronologically ......................................................................7 b. Tell the story from a single point-of-view and in the present tense.............7 c. Tell the story in plain English......................................................................7 d. Engage the jury's senses...............................................................................8 e. Make the story simple, short and sweet .......................................................8 f. Make sure the story has a beginning, middle and an end ............................9

D.

Examining Witnesses and Presenting Evidence ..................................................................9 1. 2. Carefully orchestrate the order of your witnesses and evidence..............................9 Questioning witnesses............................................................................................10 a. Direct examination.....................................................................................10 b. Cross-examination .....................................................................................11 Methods of commanding the jurys attention ........................................................12

3. E.

Closing Argument..............................................................................................................13 1. 2. 3. 4. Purpose...................................................................................................................13 Using closing arguments to determine fault ..........................................................14 Creating an emotional appeal.................................................................................15 Anticipating dangers ..............................................................................................16

Selected Bibliography....................................................................................................................18

PSYCHOLOGY OF PERSUASION A. Introduction

When preparing a case, a trial lawyer must, first and foremost, consider his audience - the jury. They are in an unfamiliar world. Most of them dont know what to expect or what is expected of them. They come to court with a value structure built up over a lifetime. They will measure the parties case against their values. They are unlikely to change that value structure because of information they receive at the trial. In fact, jurors are more likely to reject or distort new information that is inconsistent with their value structure than they are to alter their values to be consistent with the information. One problem is that jurors can't make demands upon lawyers. They cant ask you to repeat yourself when they don't understand. They cant tell you when you are repeating yourself or have talked too long. They can't tell you when they disagree with what you are saying or need more information. The key, therefore, is to be alert to your audience through every stage of the trial. B. Voir Dire 1. The twin purposes of voir dire

There are many views on how to pick a jury. The traditional view is that voir dire is the opportunity to educate and persuade the jury. In the 1960s, a study by Kalven and Zeisel found that jurors begin making up their minds from the earliest moments of the trial and have decided the case by the end of the opening statements. The study concluded that since jurors begin making up their minds right away, the advocate should think of jury selection as an extension of opening statements, and the thrust of voir dire should be devoted to advocacy. In other words, voir dire is more about advocacy than information gathering. At the other end of the spectrum, Wu and Shaffer found in a 1987 study that a jury's attitudes and biases, which stem from prior experience, are the most resistant to change during a persuasive appeal. In other words, jurors pre-existing attitudes and biases shape the way they view the evidence rather than the evidence shaping the way jurors think about the case. According to this view, a lawyer should spend voir dire discovering what people think about his case and his evidence because that is more likely to determine the outcome rather than the lawyer's early persuasive appeals. As a practical matter, there is value to both approaches. This section will discuss both how to gather information from the jury panel and how to advocate your case effectively during voir dire. a. Gathering information

According to jury consultants, one thing that interferes with jury selection more than anything else is the notion of profiling, stereotyping and folklore about who will be good jurors and who will be bad.1 There is simply no tried and true demographic profile. The reason1

For example, one dated authority lists the following "profiles:"

is that statistics and stereotypes dont work when applied to small groups. For example, suppose you learn that 70% of Polish housewives are tough on crime. During voir dire, looking at a Polish housewife, is she of the 70% that is tough on crime or the 30% who is anti-government? And even this is a gross oversimplification of peoples views. Lawyers don't have as much information as other people have who use statistics and stereotypes. Lawyers have to go right to the horses mouth. They must get the jury talking to them.2 Voir dire is also a key time to deal with your case weaknesses while you still have a chance. If the bias is there and you uncover it, consider yourself lucky, even if everyone else hears it too. You only get one chance to hear from the jurors. You can hear from them when they speak their verdict, when it is too late, or you can hear it from them in voir dire when there is still something you can do. If you hear about a bias you dont like, thank the juror for being honest. Check with the rest of the panel to see what they think. Some will agree, some wont -others wont have anything to say on the topic. Often you will find a juror who has the exact opposite opinion. If nobody has a bias that you can detect, thats a good sign. If everybody is strongly biased about something in your case, that also gives you valuable information. Whatever the case, you can deal with it during voir dire. It teaches you how best to persuade the juror sitting right in front of you.

The ethnic characteristics method of jury selection looks at ethnic backgrounds attitudes are deep-rooted beliefs that are affected by values acquired early in life from family and social peer groups. Consequently, plaintiff personal injury lawyers favor Irish, Jewish, Italian, French and Spanish jurors. Conversely, defendants in such cases look favorably upon English, German and Scandinavian jurors - Nordic types who are viewed as more responsive to law and order arguments and resent windfall damages. Criminal lawyers who subscribe to this theory use the same approach, except they reverse the conclusions. Prosecutors prefer Nordic types; defense attorneys prefer Mediterraneans. Closely tied to the ethic origin approach is the religious belief analysis. Catholic and fundamental protestant sects are viewed as favoring the prosecution. Liberal protestant and most Jewish sects favor the defense. Fundamentals of Trial Techniques, quoted as "folklore" by Patricia J. McEvoy, Ph.D. in her paper titled Voir Dire and Jury Selection at 3.2

Some of the techniques suggested by jury consultant to get the panel talking include: Ask open-ended questions that get them talking. If you can get them talking, your decision about whom to strike will become apparent to you. You talk 20% of the time; they talk 80% of the time. Get the jurors talking during the first three minutes. Dont argue or cross-examine them. Ask a lot of open-ended questions that give no clues to the right or wrong answer. Talk to individu