By Dr. Ken Broda-Bahm:
Effective legal persuasion involves the effective use of good techniques. But, done well, it involves more than just technique. It requires a perspective – I’d even call it a philosophy – of what it means to ethically, responsibly, and successfully influence another person. Good persuaders work at that their entire lives. Even as they aim to master their tools of persuasion, they also keep their philosophy of persuasion in mind.
Of course, this duality of technique and philosophy was known to the ancients as well. Those seen as selling technique alone – the sophists – were answered by others like Demosthenes who famously defined the persuader as “a good person speaking well.” Certainly the law embraces that ethic as well. So thinking about this blog, I know I don’t want to get too far out into the abstract and cerebral zones. But looking back over the past couple of years, I do feel that there is a subset of posts that, taken together, do a pretty good job of laying out my own philosophy of legal persuasion. Each one of these posts also contains practical recommendations too, but the central core of these thoughts boils down to three rules:
1. Respect your persuasive targets
2. Appreciate that these targets are active, not passive, recipients of your message
3. Remember why you’re trying to persuade in the first place.
Here are the posts:
An attorney in our firm recently stopped me in the hall. “I’m giving a talk on how to persuade in court,” she said, “Anything I should emphasize?” Where to start, I thought, where to start? It is a broad question, as the topical range of posts in this blog can attest. But the question’s very breadth pushed me to consider the basics and led me to this answer: “The target for your persuasion isn’t passive, it is active. Whether you are trying to influence a judge, a jury, or anyone else, they don’t simply hear your message and then accept or reject it. Instead, they participate.” That is clear enough when you think about it. Audiences bring their (Read More)
Early rhetorical theory and the most modern advances in cognitive science are able to find a surprising amount of common ground. Particularly when we think of the persuasive demands on legal communicators, there is much that would be recommended both by the ancients, as well as by the most current research. One place where these two perspectives meet, for coffee let’s say, is on the point of the role of an active audience participating in the creation of an effective message and a persuasive result. In part one of this series, I explored Aristotle’s notion of the enthymeme as a practical philosophy for conceiving of the ways (Read More)
The act of making choices makes us feel more powerful and more in control. Take the current debate on gun rights. Proponents of keeping firearms for self-defense are convinced that they’re safer because they’re armed. Statistically, however, having a gun in the house greatly increases the risk of violence through homicide, suicide, or accident (Hemenway, 2011). Individual gun owners are likely to discount those statistics (e.g., Howard, Webster & Vernick, 1999) because the gun is under their control and, they believe, they’re the ones making the choices that would affect their exposure to that risk. The situation is (Read More)
We are used to seeing compassion as an aspect of character, an ethos, or even as a religious belief. But here is another way of looking at it: Compassion is a behavior. And like other behaviors, it can be evoked in some circumstances and inhibited in others. Rather than simply hoping that those who evaluate us will have compassion, new research is showing that it is possible to facilitate or create the conditions for compassion. “Engineered Compassion” may be putting it too strongly, but it isn’t too much to say that you can cultivate compassion. Now, few are able to win a legal case on compassion, at least not if compassion (Read More)
Lucy, for the umpteenth time, holds the football and invites Charlie Brown to kick it with the promise that this time, she won’t pull the ball at the last moment and send him flying. His response: “I don’t mind your dishonesty, half as much as I mind your opinion of me. You must think I am stupid.” That simple response reminds us that your communication conveys not only content, but also our attitude toward our audience. To the rhetorical scholar Edwin Black, that conveyed attitude amounts to a “Second Persona,” that is important to all persuaders, including litigators. The first persona is what we as a speaker (Read More)
Sheep tend to placidly eat what’s in front of them. Wolves, on the other hand, hunt. Now, with that distinction in mind, think about how we now typically gather information. There may have once been a time when the average American came home from work, turned on the television, and just soaked in the news as placidly as a sheep. Now, on the other hand, we hunt our information like a wolf. In addition to being able to target our news from a dizzying array of television channels, including some that are tailored to our ideological preferences, we also rely on the internet to Google-up news stories that precisely fit the focus and the Read More
Never heard of “Alpha” and “Omega” strategies for persuasion? Until recently, neither had I. But after reading the research, it has changed my way of looking at persuasion. The terms are based on something called the “approach-avoidance” model (Knowles & Linn, 2004), suggesting that to an audience, every position you might advocate has attributes that attract (“approach”), and attributes that repel (“avoidance”). Persuasion is accomplished, naturally enough, by making the approach stronger than the avoidance. Now, you might think, “that is obvious — of (Read More)
The buzz following Thursday’s vice presidential debate between Congressman Paul Ryan and Vice-President Joe Biden has been that it was a substantive and spirited debate — with an emphasis on spirited. Both candidates appeared to be quick to challenge and eager to engage. Both appeared to be glad to be there. As summed up by CNN’s John King in the moments following the broadcast, they are “happy warriors.” Perhaps that happiness is understandable, since debate season is a high point of attention to the office of Vice President. On the other hand, the difference between especially the President’s apparently reluctant and (Read More)
On some days, just watching the news can stop us cold. Those who work in law should be proud to be part of a system that, however imperfectly, resolves disputes with appeals to reason and judgment rather than force. But the opposite end of the spectrum was seen in last week’s devastating shooting in Tucsonthat left six dead and fourteen injured. While the motives of the shooter remain hazy at the time of writing, one element seems clear: for whatever twisted reason, the individual saw Congresswoman Gabrielle Giffords as an adversary. Inevitably, that act has raised questions about the state of our national dialogue, and the civility, (Read More)
The reason probably, at least partially, has something to do with justice. The cases that should remind us the most of that can sometimes feel like lost causes, like the tragedy of Adnan Latif. This young man traveled in 2001 from his native Yemen to Pakistan, near the Afghanistan border, where he was captured in a post-9/11 military sweep and ended up at Guantanamo Bay. According to his lawyer, David Remes, Mr. Latif was seeking medical care following a severe head injury sustained in a car accident. While the government maintains that he trained and fought with the Taliban, there is no information in (Read More)
Image Credits: For this post: Marfis75, Flickr Creative Commons. Credits for the images used with the other posts are contained within each blog entry.