August 26, 2013


By Dr. Ken Broda-Bahm: 


Last Tuesday saw something remarkable. A man armed with an assault rifle and several other weapons entered an Atlanta area elementary school and there was every indication the situation could’ve had fatal consequences for many of the 800 kindergarten through fifth grade students, for school staff and teachers, for law enforcement, or for the armed man himself. Only it didn’t. No one inside or outside the school was hurt. That is because the appropriately-named Antoinette Tuff, a school clerk in the front office, engaged the would-be shooter, and talked him into putting down his weapons and surrendering. By all accounts, she was calm and maintained her wits, and that alone is commendable. But what is truly remarkable about the story is what she actually did in order to stop the gunman: She didn’t beg or plead, but instead consciously tried to relate to the troubled young man. “I just started talking to him” she said, “and let him know what was going on with me and that it would be OK.” Divulging some of  her own personal struggles to the gunman, she talked about her divorce, her attempt at suicide a year after that, and her struggles with a son with multiple disabilities. “But look at me now,” she told him, “I’m still working and everything is OK.”

That approach — humanizing herself and building a human connection with the armed man — thankfully worked and made Ms. Tuff into a national hero. But the story also says something very basic, and incredibly important, about communication itself. Even in situations with far less at stake, the act of influencing someone else is the act of building bridges and finding common ground that humanizes both the source and the recipient of the message. In the field of rhetoric, it is called “identification,” or the act of  appealing to the shared language, shared experience, and shared ideals that bind you and your audience. First articulated by the American rhetorical thinker Kenneth Burke, the idea of identification is familiar to academics who study human communication, but may not be known by practical persuaders including litigators. This post takes up this idea and focuses on three ways litigators build bridges and humanize both themselves as well as their persuasive targets. 

Kenneth Burke and Identification

This idea should occupy a prime spot in every persuader’s tool box. Kenneth Burke, an intellectual giant who himself served as an important bridge between modern psychology and ancient philosophy, sketched out the argument in one of his signature works, A Rhetoric of Motives, in 1969. Defining identification as that which “can bring people together by emphasizing the ‘margin of overlap’ between the rhetor’s and the audience’s experiences,” he positioned it as one of the most important, if not the most important, pillars of human communication. It boils down to this: Influence stems from common ground. A recognition of commonality, that Burke called “consubstantiality” or sharing of substance, is the bridge that leads another to view what you are saying as meaningful, credible, and potentially influential. 

To make that a little more concrete and practical, let me discuss three recognized ways identification can work, and how that can apply to messages in litigation. 

Formal Identification: The Same Language and Style

Advocates recognize the importance of using commonly understood terms instead of technical or legal jargon, as well as the necessity to carry oneself in ways that won’t put off your jury. No, that doesn’t mean dressing in overalls when you have a panel of farmers, but it could mean leaving the flashy  watch at home when it would set you apart from your persuasive targets. The goal in formal identification, however, is not simply to be understood and to avoid offense. It is to say, through appearance, style and language, “I am like you.”

Material Identification: The Same Condition or Experience

This was the approach used by Antoinette Tuff: “I’ve been there, I can relate to where you are.” That can work for someone in a crisis, but in a litigation context, building on common circumstances means tapping into jurors’ practical experience. When conducting voir dire in a complex securities case, for example, it means framing the controversy in terms non-specialists will be most likely to relate to: A house purchase, perhaps. In opening statement, it means building your case around the common story elements that we’ve all known since childhood: A setting, a protagonist, a conflict, and a resolution. In closing argument, it should mean walking jurors back through the shared experience that is now the trial itself. All are ways of saying, “We know the same things.”

Idealistic Identification: The Same Principles or Beliefs

The third layer of common ground relates to what we think and understand. When our most basic commitments are aligned, then less basic obstacles might be overcome. You and I might disagree on an immediate issue, like the value of gun control for example, yet agree on the more foundational value of public safety. So if I was trying to persuade you, I might begin with a broad appeal to that shared belief in public safety. That doesn’t guarantee persuasion, of course, but it helps. Recognizing the universal principles that tend to motivate jurors, or the specific values a given judge tends to embrace are ways of buttressing your message, wrapping it in a cloak your target already recognizes — a way of saying, “We have the same ideals.”

On the 50th anniversary of the March on Washington and Martin Luther King’s famous I Have a Dream speech that solidified and put a human face on the common appeal in the struggle for civil rights in this country, it is worth noting that Dr. King did that, not by speaking to black Americans’ need for equal rights alone, but by speaking to a need for Americans, black and white, to “sit down together at the table of brotherhood” — common ground, identification, persuasion. Circling back to the armed man and the school clerk this past week, it seems possible to hope the effectiveness of recognizing a common humanity is still alive and well.  At the end of her ordeal, Antoinette Tuff said “I’m not a hero,” which of course is something that heroes tend to say


Other Posts on Identification in Persuasion:


Photo Credit: Geometer Artist, Flickr Creative Commons (including drawing by Leonardo Da Vinci)

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