December 8, 2016

See Persuasion as a Process (Toward a Unified Theory of Legal Persuasion)

By Dr. Ken Broda-Bahm: 

Persuade

An attorney at our firm, tapped to give a CLE talk, asked me recently if I had anything on the “science of persuasion.” Pretty broad. I wondered where to begin, but it did get me thinking. At the most general, 30,000-foot level, what is the science of persuasion? Does the field have anything like the “Grand Unified Theory” of physics? That thinking is what led to my audacious title for this post. Both generally, and particularly as it relates to persuasion in a courtroom, I want to believe that our field is more than just a list of techniques and tactics — persuasion should be more than just a bag of tricks. That is what makes me want to boil down our knowledge and practice into something like an overarching perspective. 

I am no longer an academic, but some of that perspective is tough to shake. Since this is a blog and not a peer-reviewed academic journal, I do have the luxury (or liability) of sharing thoughts before they are fully developed. So what I aim to start fleshing out in this post, relying on that forgiving word “Toward” in the title, is a perspective that sees persuasion as a connected process. It is not a matter of one action by the persuader leading to the result of persuasion. Rather it is a matter of several steps, each building on the previous steps. And, framed and formalized as it is, the legal courtroom setting is a good setting for that process. In order to be persuaded, a target audience needs to:

  • Understand
  • then Care
  • then Agree
  • then Remember
  • then Use

That list might be grist for academics thinking about an overarching theory of persuasion, and I kind of hope it is. But I see it as a more practical set of tools. Persuaders, including those in the law, should ask how they are laying the groundwork for persuasion at each of those five stages — how they are answering each of these five questions of their fact finders. 

Do They Understand?

Jurors have to reach a level of understanding before they can get anywhere else. And I don’t mean just literal comprehension – the kind of detailed case knowledge attorneys demand of themselves. Instead, I mean an ease, comfort and facility with the information. Jurors don’t have to pass a quiz on the case facts, but they do need to reach a subjective sense that they know what the story is about and they get where each side is coming from. The amount of effort it takes is important as well: If grasping the lawyers’ version takes too much work, then they will settle on simpler, and often distorted hueristic versions. So the question is not just whether a juror would be capable of understanding the case if they paid enough attention or applied the right kind of attention. The question is whether that understanding is easy, natural, and familiar.  

Do They Care?

The rational legal model emphasizes what the Greeks called “Logos,” the logical process of being persuaded by the words that follow “because….” But the emotional component about caring about a point, what they called “Pathos,” comes first. The rapidly evolving research on “motivated reasoning” reminds us that people will understand, accept, remember and use what they want to understand, accept, remember, and use. The crucible of our current social media is a good example: If you want something that supports your factual beliefs and worldview, it will probably be in our own personalized “feed.” And if not, it only takes a few clicks of purposeful Googling in order to find it. The idea that preference leads and reasons follow means that we use facts and arguments to support positions that are already constructed based on deeper perceptions and desires. In a courtroom, the question of “Who could they logically favor based on the facts and the evidence?” should be preceeded by “Who would they want to favor?”

Do They Agree?

If legal persuasion was a one-step process, it would be this step. That is what our model assumes: Neutral observers hear and understand all the facts and then decide who has the better argument. The evidence-based focus of trial advocacy also encourages jurors to approach persuasion as if logical assent were all that matters. But while agreement isn’t the only ingredient, it is still an important ingredient. As much as jurors are going to be influenced and motivated by other factors, they will want to believe that they are rising to the law’s challenge and reaching a verdict that is based on the reasons and the evidence. That agreement from your fact finders will still not be the sterile logical exercise the law expects, but will be more of a matter of deciding who is credible and which of the stories they’ve heard seems to be more complete, more compelling, and more consistent with what they already take to be true. 

Do They Remember? 

Persuasion is not an instant process, not just a matter of stimulus then response. Rather, it is a process of self-persuasion in which your target will work at it over a period of time. Arguments are stored for later use. This is particularly true in a legal context where jurors don’t just vote on a witness’s credibility right after hearing that witness but are instead told to wait on forming an opinion until they have heard everything. Of course, that won’t stop them from forming an opinion, but they will still need to wait for deliberations in order to make use of that opinion. For that reason, techniques of effective legal persuasion persists beyond the moment of their use. What makes it memorable is a sticky theme, or a familiar metaphor, or a powerful visual. Employing all of those techniques is not just a matter of promoting understanding or agreement, their use is also a matter of making sure the impression or the argument sticks around long enough to be used in reaching a decision. 

Do They Use? 

Passive agreement isn’t much use in deliberations. We frequently see mock trials where the number of jurors supporting one of the parties seems large enough to guarantee a robust dispute during the deliberation phase, but then those supporters either don’t speak up or quickly fold once they’re confronted by the arguments from the other side. In arguments before the bench as well, it is one thing for the judge to agree with your argument, and another thing for the judge to be able to reconstruct and apply that argument as part of their decision. The legal persuader isn’t interested in passive agreement, but in advocacy. For that reason, closing argument isn’t just a last chance to convince those on the fence, it is also a chance to arm your supporters for the argument that is to come during deliberations. This final step draws from the other four: Jurors are most likely to use material when they understand it, care about it, agree with it, and remember it.  

Tying these steps together, the common principle is one of an active audience. Your target is not just a passive recepticle for your message. Instead, when it is sucessful, persuasion succeeds with the participation of your audience. The five steps I outline are five stages for promoting that participation.  

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Other Posts on Theory of Persuasion: 

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Image credit: Designed and created by Jason Bullinger, Persuasion Strategies

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