A Dynamite Persuasion Technique: “But You Are Free”

 

We live in the “land of the free, home of the brave.” As a people, we cherish freedom, but it’s something lawyers do not always factor into voir dire and closing arguments.

And yet, 42 psychological studies on 22,000 people has shown that the single most powerful persuasion technique is to give people the freedom to choose. In other words, when you ask someone to do something, make sure to add to your request, “but you are free” to do otherwise.

The exact words don’t matter, for example, the phrase “But obviously do not feel obliged” worked as well as “but you are free.” What’s important is that people resist being forced to a singular choice. When you give them the option to choose, people are more amenable to being persuaded by you.

The used-car salesman who says “But of course, you’re free to compare the price with other dealers” is more likely to make the sale than the salesman who hammers a “this deal is the best deal you’ll ever get” approach.

However you phrase it, whenever possible, give jurors a “but you are free” option: free to choose as their conscience dictates, free to come to some other conclusion--all the while putting your choice forward, leading them to it rather than corralling them into it.

Photo Credit: Brandonrush, CC0, via Wikimedia Commons

Use Repetition to Drive Juror Acceptance of Your Case

When the jurors troop into the jury room for deliberations, every litigator’s dream is that each of them would, individually, spout your case theme/key points so that group consensus in your favor is inevitable.

But how do you get them to do that? By presenting a targeted, credible and compelling case. That’s a given. In addition, put the power of repetition to work for you.

Research by K. Weaver and colleagues shows that repetition, even by the same person or organization, is highly impactful: “…when an opinion is repeatedly broadcast at us by the same organization--think of a particular media conglomerate or an advertiser--we’re likely to come to believe it represents the general opinion. That’s despite the fact it is analogous to the same person repeating themselves over and over again.”

Not only should you, the trial attorney, repeat your themes and key points throughout your opening, examination of witnesses, and close, but all your witnesses, expert and lay, should be encouraged to include case themes and key points in their testimony.

Repeat, repeat, repeat! When you and your witnesses are consistent in broadcasting the same message over and over again, jurors are far more likely to accept it as the general opinion and adopt it as theirs.

 

Pressuring Potential Jurors in Voir Dire Can Backfire at Trial

 

Time after time, what I discover in jury debriefings is that jurors don’t like being “interrogated” during voir dire. They don’t mind being questioned, but they heartily dislike attorney attempts to force answers out of them and especially resent being pressured into a “yes” or “no” response.

Now this wouldn’t be so critical if it weren’t for the fact that people who feel pressured into a position, retaliate by disliking the person who pressured them. Cornered animals bite. So do jurors.

As tempting as it is to finally get that unqualified “yes” or “no” from a juror, be aware of the consequences. A juror who doesn’t like you will be far less susceptible to your arguments, and may very well damn you during deliberations. Not only that but the unqualified “yes” or “no” is often the juror simply trying to wriggle free from your unwanted persistence.

You may receive a sufficiently truthful and more accurate response by framing your question differently such that it doesn’t antagonize your juror unnecessarily: “Is it more likely that you would . . .” People respond well to choice, as well as to the word “would,” which is experienced as non-invasive.

Win Your Case by Winning Client Cooperation!

 

It’s often said that the practice of law would be great if it weren’t for clients. Clients, of course, are what drive your business, so like it or not, part of a successful practice is learning how to deal with difficult clients.

Most clients don’t set out to be difficult, but in their frustration, anxiety or fear, they are difficult. Given that understanding, one way to assure easier interactions with your clients is to tell them upfront what to expect. This will allay their fears to some extent, which in turn will usually make them less difficult to deal with.

Let your client know, at the beginning of the relationship, that the unexpected will crop up as you handle their case. This isn’t a maybe, it’s a guarantee. Every case has its unanticipated events. Sometimes that unexpected situation will be to your client’s advantage and sometimes not. Let your client know that you will promptly inform them of the bumps and hurdles as they come along and how you expect to deal with them.

Ask your client how they prefer to be informed: by email, phone, never on a Friday, only in the afternoon, whatever. Don’t assume that the way you like to communicate is satisfying to your client. Respect their preferences. Your client may not like what they hear from you, but they will feel kept in the loop in the way they like to receive information. This, in and of itself, will often soothe a fitful client. You will have acknowledged and respected their wishes, which in turn is likely to make things a little easier for you through the life of the case.

Want to Win? Start Off On The Right Foot With Prospective Jurors

 

When prospective jurors walk into the courtroom, they only know one thing for sure: the courtroom is His/Her Honor’s private reserve, and the Judge’s word is law. Everything about the physical layout of the courtroom says “In this room, the Judge is Top Dog, and whatever they say is set in stone.” The Judge sits higher than everyone else. All must rise upon the Judge’s entrance, and may only be seated when told to do so. And whatever the Judge says, however erudite or nonsensical it may seem, becomes “what is” in that Courtroom.

So, imagine my surprise when I observe lawyers go directly against a Judge’s “what I expect in my courtroom.”  I know, from years of experience, that jurors, whether prospective or empaneled, ding any lawyer who fails to respect a Judge’s stated orders. The most common failure is the failure to respect time. For example, the Judge says “Your mini-opening will be two minutes, no longer.” The lawyer launches into their mini-opening, the two-minute mark is hit, the Judge cuts the lawyer off – sometimes, mid-word. The lawyer, hurt and surprised, sits down. The prospective jurors look coldly at the lawyer. They heard the rule, why couldn’t the lawyer obey it?

You see, prospective jurors MUST appear when summoned, MUST be on time, MUST turn off their mobile devices, MUST sit where told to sit, and the list goes on. When the Judge tells you what you MUST do, you’re well advised to do it. Failure to do so makes you disrespectful in prospective jurors’ eyes, and less worthy of their consideration. Much harder to convince.

Since your jurors are within that pool of prospective jurors, abiding by the Judge’s edicts right from the git-go is the easiest, quickest way to get their approval.

Start off on the right foot with your jurors, and you have a much better chance of ending on the right foot.

How Your Emotions Can Help You Win Your Case

 

The question of whether to trust our logic or trust our emotions is rarely brought up in the context of legal matters, at least not from the lawyer’s point of view. Certainly, we discuss endlessly how this or that prospective juror’s mindset (highly emotional versus highly rational) might impact our case, but not usually how the lawyer’s emotion would.

However, research by M. Pham, L. Lee and A. Stephen provides interesting insights into the positive impact lawyer emotions might have in winning cases.

Their study showed that people who were more likely to trust their feelings were also more likely to accurately predict the outcome of a particular event. The researchers call this phenomenon the “emotional oracle effect.”

How does this apply to winning your case? Tune in to your emotions. If, when preparing a witness, you sense that something is “off,” don’t dismiss that because your logic tells you all is well. Trust your emotions enough to say something like “I notice that . . .” or “I’m wondering if. . .” which is a non-threatening way to probe further and take a look at whether or not what you sense with this witness has some basis in reality.

The more you practice listening to the guidance of your emotions, the more you will be able to discern which to trust.

Similarly, you can review the demographics of your prospective jurors all you want and weed out the obvious “bad apples,” but when it comes down to that moment in voir dire when you’re between “keep Juror A versus Juror B,” tune in to your emotions. Listen inside yourself for that intuitive hit and go with it.

Your mind is bigger than your analytic prowess. Use all of it, rational and emotive, in the service of your success.

Get Those Undecideds On Your Side: With Jury Instructions

Despite the best efforts of all involved, jury instructions remain obscure and confusing to all but the most legalese-savvy jurors. Cases should be won or lost on their merits, but too often, cases are lost (or unsatisfactory verdicts obtained) because the jurors either did not understand the jury instructions, or how those jury instructions should be specifically applied to the verdict form.

Clarifying jury instructions so jurors can make their way through the verdict form fully understanding what their vote means, is important. That’s step one. But then it’s critical to move on to step two: letting the jurors know during closing argument not only how they should vote (according to you), but why.

It’s the “why” that is often left out. You need to arm the jurors already decided by your arguments with sufficient ammunition to convince the undecideds – reiterating the evidence/testimony simply isn’t enough.

“Why” consists of firmly tying specific evidence supporting your case to specific verdict questions, preferably in bullet form, which is easier for your decided-jurors to remember and use in their “Here’s why” during deliberations.

Undecided jurors are your “make it or break it” jurors, and they only make up their minds during deliberations. If you don’t give those jurors already on your side the information they need to swing the undecideds over, you leave the verdict up to chance. Or worse, up to ill-formed, confused, half-hearted attempts, for in the absence of solid rationale, what else can your decided-jurors argue?