November 9, 2017

Preserve a Place for Spoken Persuasion

By Dr. Ken Broda-Bahm:

A fair proportion of the legal advocacy in America today is taking place via written communication. With only a small percentage of cases actually ever seeing a jury — three percent, or less — cases are more and more often reaching their ends based on written motions. Summary judgment decisions are often decided based on briefing, and in settlement negotiations as well, it can often come down to letters and emails ferried back and forth between the parties. There is obviously still a place for trial and oral argument, still a role for the advocate standing at the lectern and facing the fact-finders. And there is also clearly still a role for passionate and powerful face-to-face negotiations in pursuit of settlement. But is there a danger in the continuing drift toward replacing oral advocacy with written advocacy, as briefs and letters more often displace the spoken word?

I’d argue that yes, there is. Verbal communication is not just a delivery system, and oral advocacy doesn’t just involve speaking the words that would fare just as well on paper or on a screen. Instead, I believe that there is a unique component that is only conveyed in spoken persuasion and advocacy. You might think that the same content can be effectively conveyed in writing, perhaps with even greater care, control, and convenience. But what is missing? In large part, it is the human  factor. And now there’s a study to prove that. In an article in the current Psychological Science, researchers (Schroeder, Kardas, & Epley, 2017) demonstrate that hearing an opinion spoken has a uniquely humanizing influence on perceptions of the source. When compared to the same message delivered in writing, the spoken message is more likely to generate empathy. “If mutual appreciation and understanding of the mind of another person is the goal of social interaction,” they write, “then it may be best for the person’s voice to be heard.” In this post, I’ll discuss the study and share three quick thoughts on preserving the role of spoken advocacy in litigation.

The Research: Words Communicate, but Speech Humanizes

The study, described in a recent ScienceDaily release, tested written versus spoken messages while keeping the actual content constant. The team found that, when receiving an opinion they disagree with, people who hear it are significantly more likely than those who read it to think of the source in more complete and human terms. This humanization occurs, the researchers believe, based on the additional information that is carried in the emphasis and tone of the human voice which cannot be reproduced in speech.

They write, “Specific aspects of speech, such as intonation and frequent pauses, may serve as cues that humanize the people who are speaking, making them seem more intellectual and emotionally warm than those whose opinions are written.” The lead author, Juliana Schroeder of the University of California, Berkeley, explains, “It is possible that variance in communicators’ natural cues in their voices, such as tone, can convey their thoughtfulness.”

The Implication: Don’t Reduce It All to Writing

There are a few implications for litigators to remember.

Keep a Space for Speech

Don’t get complacent with the idea that it is just easier to keep the persuasion in written form. If you have an opportunity to ask for oral argument, ask for it. Particularly in a case with voluminous briefing, emphasize to the judge that oral arguments can play a unique role in helping to boil the case down to the essentials and helping to frame the key points of the decision. If you have an ongoing negotiation, instead of writing another demand letter, pick up the phone or schedule a meeting. And, if you still end up being not fully satisfied with the options for resolution, don’t be afraid to take it all the way to the courtroom. Remember that you’re still a speaker and not just a writer.

Especially if You Face a Skeptical Audience

It is noteworthy that the study found that the medium matters the most when people are hearing an opinion they disagree with. The form of communication led to less consistent results when speaker and audience were in agreement. But the skeptical audience is more likely to see the source as more sophisticated and warm when the message is heard rather than read. Litigators, of course, often face skeptical audiences, and the more skeptical the audience is likely to be toward your position, the more you are likely to fare better with oral communication.

And Don’t Relegate It to the End of the Dispute (If You Can Help It)

Of course, it is a fact of life in our court system that you will often only start to see oral arguments and other forms of live persuasion once the case reaches its latter phases. That is unfortunate, since it makes it less likely that positions formed in response to the written persuasion will still be soft enough to be revised in response to the verbal persuasion. For that reason, it makes sense to ask for oral arguments earlier rather than later. Shorter briefs and more extensive oral advocacy is not just more humanizing, it is also more likely to be time-efficient, at least for the attorneys involved.

So I hope I’ve made my case that spoken persuasion still has a role…It probably would have been more effective if I’d delivered it verbally.

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Other Posts on Delivery: 

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Schroeder, J., Kardas, M., & Epley, N. (2017). The humanizing voice: speech reveals, and text conceals, a more thoughtful mind in the midst of disagreement. Psychological Science, 0956797617713798.

Image credit: 123rf.com, used under license, edited by author.

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