By Dr. Ken Broda-Bahm:
What counts as good legal persuasion differs from one country to the next. Different cultures, different legal rules and systems, and different fact finders all make a difference. But one thing stays consistent no matter the venue or the tongue: Legal persuasion boils down to people using communication to influence other people. That common purpose stands out in a paper released last month for the United Nations International Expert Programme in Investigative and Legal Psychology (Barosa, 2017). The paper is written by a Portuguese criminal lawyer, Pedro Barosa, and provides a literature review and reflections on emotional intelligence, mostly aimed at persuading judges (appropriate to the Portuguese system) but, as he notes, the thoughts are also broadly applicable to persuading anyone.
Mr. Barosa begins with the novel and disarming admission that, throughout his general and legal education, and continuing into his legal practice, he has consistently considered himself to be less cognitively intelligent than most of his peers and adversaries. But despite that, he wins more often than not, based, he believes, on an appreciation and use of emotional intelligence. The concept of "emotional intelligence" has been around for a couple of decades, and it refers to the ability to perceive, analyze, generate, and use emotional responses. It does not just mean high levels of feelings, it means the ability to reason constructively about feelings. Barosa boils the definition down to three processes: "1) appraising and expressing emotions in the self and others; 2) regulating emotions in the self and others; and 3) using emotions adaptively to achieve one's goals." The research shows it to be unrelated to cognitive intelligence, meaning that people may be a genius in reasoning, but still a novice at emotional intelligence. Because law as a profession can self-select for individuals who prioritize logic over emotions, and because effective legal persuasion requires a mix of both, it is worth thinking about. In this post, I will share seven reasons to improve emotional intelligence informed and inspired by Barosa's essay, as well as three ways to do it.