I received a form letter asking for money to support a judicial candidate. It’s typical of many such letters we get in the mail. This one is a good illustration of a poor approach to persuasionn. It began with a statement in large capital letters "Harry needs your help." It followed that with "Judge Harry Smith's future on the court depends upon the support...of friends." It went on to say "We want to make certain that Harry receives the financial support he needs..."

We know that the most basic rule of persuasion is to appeal to what the other person wants and not to what we desire. What does the person you wish to persuade want? That's always the first question. In trial, it means applying that question to the jury or judge. You start with something that attracts attention and then focus on what the other person wants. You never start with with what you want or your client wants. For example, in a jury case, we know the jurors want to be part of something important. They want the their jury service to mean something. They want to do the right thing. We don't start with what we want or our client wants. We start with the premise that if they agree to the verdict you suggest it will fulfill these needs of the jurors.

This mailing was entirely focused on what Judge Smith wants and needs - our money. The reasons given for our taking money out of our pocket to give to him were his future on the court is at stake. The letters wants to make sure he gets the financial support he needs and he deserves in order to keep his job. Instead, the letter should be focused upon what we want and we need. Why? Well, what's the question the jurors sub consciously are asking themselves at jury selection? Answer: "What's in for me?" The could care less what the plaintiff lawyer wants and care even less what the plaintiff wants. The question for the juror is: what will this do for me. So, we are trained to talk to the jury from their standpoint. How this impacts them. How a verdict for the plaintiff will benefit them. For example, rules mean safety for you and the community. Broken rules means danger for you and the community. A verdict for plaintiff means enforcement of rules that protect the jurors, their families and the community and therefore meet the needs of the jurors. 

This  letter  should  have talked about the needs of the people from whom the money is being asked and not about the needs of the judge to keep a job. This letter should have started out talking about the voters needs and not the fact the judge is worried about not having a future on the bench. What the voters need are good, well balanced judges who enforce the law. They need fair minded judges to conduct the trials involving themselves and their clients. They need a judge who will listen and will conduct trials in a fair and honest manner. That’s what important to the people who are being asked to contribute their money and that’s what the letter should have talked about from the begining to the end. At the end of the letter the point should be made that the voters will not have their needs met by having this kind of judge on the bench unless Harry gets the financial support needed to maintain his record of honesty, fairness and quality work as a judge.

Let’s remember the principles of good marketing when he plan our trials and how we will go about trying to persuade jurors.

I’ve just returned from my annual trip to the Spence Trial College which is conducted on a remote ranch about two hours drive from Jackson Hole, Wyoming. I like to claim that since the time I was invited by Gerry to teach there when it first began over a decade ago, it’s so I can teach lawyers how to try cases. But, the cold hard truth is that I go there to learn more than to teach. I have become friends with people from all over the country both those who are there as students and those who are there as teachers. I have gained far more than I have ever given on these trips because of the stimulating atmosphere and the benefit of seeing my friend Gerry as well. Over the many years the College has been evolving as it has learned from experience and modified it’s approach. The best way to experience this unusual and unique program is to attend a three day regional meeting which are held all over the country. For more information see http://www.triallawyerscollege.com/

I’ve just finished a book written by Jane Leavy, Sandy Koufax. I had admired Sandy for his good character and his amazing pitching skill. He became famous when he refused to pitch in the opening game of the 1965 World Series because it was Yom Kippur, the holiest day of the Jewish calendar. One passage in the book struck me as great advice to lawyers, especially young lawyers. When a young Dodger struck out he was in the locker room holding his head and feeling sorry for himself. Koufax tapped him on the shoulder and when he looked up Kofaux said to him:

"Kid, if you can’t take it, get out of here. We don’t want people in here that feel sorry for themselves. You’ve earned the right to wear this uniform...You’re a Dodger. Dodgers don’t hang their heads. They don’t feel sorry for themselves and they don’t point fingers."

That's the advice I would like to give trial lawyers. Too often I hear them blaming everyone for their failings except themselves. They cry about biased juries, gender discrimination, judicial bias, unethical conduct and every other excuse except their own failings. Trial work is very punishing and difficult work. A lawyer, male or female, should not go into trial work if they are not prepared to take all the pain, unfairness and sacrifice it involves. I used to keep a copy on my desk of the old cartoon of the two Roman soldiers standing in front a high wall of a fort the army is attacking. The defenders are pouring boiling oil down on the soldiers. The one soldier says to the other: "Look, you knew about the boiling oil when you joined up." That's what I want to say to young lawyers when they whine and complain about unfairness or ill treatment or losses.

I’ve just finished Cracking the Code by Thom Hartmann. The book deals with the science and technology of effective communications. The book is an excellent summary of various communication concepts including Neural Linguistic Programing, framing issues and other basics. One example I thought interesting was the way he starts his talks in order to reach visual, auditory and kinesthetic listeners:

"I want to talk to you today about stories that we tell ourselves, the way we view the world, and the way we all feel as Americans."

He discusses "moving away from pain" persuasion strategies compared to "moving toward pleasure" strategies. He says moving toward pleasure has greater success than moving away from pain. Think about that when you are planning your next argument as why the decision maker should find in your favor. Holding out a reward works better than the threat of pain.

He also talks about using "the indirect you" in persuasion. For example, the car salesman might say "some customers have told me, when you buy this car, you have the best car ever made and really feel great driving it." What he has done is to embed in the customer’s unconscious mind that if they buy the car they will have the best car ever made and will really feel great driving it without saying that directly to the customer.

He discusses what I’ve written about before, that is the unconscious mind generally cannot translate multiple layer language information as the conscious mind can. Research indicates that when you preface a word with a negative such as "not" the unconscious brain does not translate "not." So "not clean" or "not dirty" are heard as "clean" and "dirty" This is a good book with a lot of helpful information.

The Seattle PI of July 1, 2008 has an article about the arguments in the federal trial by the City of Seattle against the Sonic basketball group. This is what it reports about an exchange between Judge Pechman and Paul Lawrence for the City:

Judge: Mr. Lawrence, answer my question

Lawrence: I'm trying to

Judge: Did the mayor ever call Mr. Bennett back and say let's sit down, let's talk about this and see what we can do?

Lawrence: The mayor...

Judge: I didn't hear it (i.e. a straight answer to her question)

Lawrence: The mayor's position has been consistent that he's willing to talk about - the only thing he's willing to talk about is something that would allow the Sonics to stay through the end of the lease and hopefully something future going forward. Since that was not a discussion that Mr. Bennett was willing to have there was no discussion.

Judge: So, the answer to my question is no?

Lawrence: Not - the mayor was not wiling to sit down and discuss an early exit, correct

Judge: Let's move on

Now, I ask you. Doesn't that violate every rule of argument to a judge? It sure reads to me like the lawyer was being evasive like a hired expert instead of answering the question first and then qualifying. Instead, he deliberately dances around her question in such a way as to tell her he refuses to answer it directly, just as hired expert might do on cross examination. It seems to me the worst thing a lawyer can do in arguing a matter to a judge is to refuse to be responsive to a judge's question. You know the proverb, "never insult the alligator until you are across the river" After all, this is a case tried to the judge without a jury. She is the last person you want to offend in final argument. At least, that's how it looks to me, having not been there, from the report in the paper.

Malcom Gladwell’s book Blink about how choices are made explained the workings of the unconscious mind process. It demonstrated how we form our opinions and make our decisions at a level we are not even conscious about and can’t intellectually access. Now there is a report of a study which dealt with scanning the brains of people making simple decisions. According to a report in the Wall Street Journal (June 27, 2008) scientists discovered that brain appears to make a decision at least 10 seconds before the person becomes conscious of that fact.

This research is pioneered by John-Dylan Haynes at the Bernstein Center for Computational Neuroscience in Berlin. Scientists in Germany, Norway and the U.S. have made studies using functional magnetic resonance imaging. Their studies show that while we think our decisions are made at a conscious level that may only be just the tip of the ice berg. Researchers argue that many important decisions may be best made by going with our gut rather than thinking about them too much. Other researchers have found that people struggling to make relatively simple decisions such as which car to buy or apartment to rent, appeared to make sounder decisions when they were distracted and unable to focus consciously on the problem.

What all this means is that we think jurors, as well as ourselves, make intellectual decisions after weighing all the alternatives and thinking things out logically. But, the reality is that most, and some say 90%, of our decisions are made at an unconscious level. I cannot repeat too often the fact that as a result of these truths trial is truly a battle of impression rather than logic.

The lawsuit by the City against the Sonics basketball club has been tried to a federal judge without a jury for the past week. The Seattle PI today points out that the lease, which is the subject of the controversy, had a clause requiring the loser to pay attorney fees and costs. The paper reports that former senator Slade Gorton is being paid at $685 per hour to advise the city and their trial lawyer Paul Lawrence is paid at $420. It says Gorton is an advisor at trial. There are other associate lawyers assisting as well. It notes that the City had already paid the Gorton firm $1 million for advisory work. It notes that the City's sports expert was paid $17,753. The Sonic's group paid $100,000 for a public survey to show community attitudes. Keep in mind this was a one week non jury contract dispute. I doubt these facts will improve public attitudes about lawyers and their costs. This illustrates the illogic of  tort reformers whose real goal is to keep poor people from hiring lawyers since the rich and powerful have no problem financing their litigation, but want no restrictions on them - only on those who want to sue the rich and powerful. When we read about these huge multi million dollar verdicts they most often involve one huge corporation suing another in commerical litigation rather than some poor injured person trying to get justice.

The newspaper reports that during the lawsuit by the City of Seattle against the Sonic's basketball organization the following question was asked on cross examination by the lawyer for the city:

     Q.     You understood the risk that you would  be sitting here today without a new building, without a
renegotiated lease, with a lease that obligates you to perform  through the 2009-2020 season, a lease under which there over $20 million a year operating losses at the time you signed this assumption document, correct sir?

How much better the question would be if it were broken down into short simple statements. It gives the witness less opportunity to be evasive and it exposes any attempts to be less than candid. Try this same question broken down as follows:

 

    Q.    You knew there would be a risk of not having a new building when you signed the assumption document without a renegotiated lease?

Q.You knew the lease obligated you to perform through the 2009-2010 season when you signed the document?

Q.  You knew under the lease there was over $20 million a year in operating loses when you signed the document?

Q.  You knew all these things, but you chose to sign it anyway didn’t you?

Karl Rove brought to perfection for the Bush administration the framing of actions in a way they would be receptive. For example "The Clean Air Act" allowed businesses to pollute. The "Healthy Forest Act" allowed the logging industry to clear cut indiscriminately. The proposed "Clean Ocean Act" would allow free oil drilling with the potential to pollute our waters. George Lakoff, professor of linguistics at the University of California, Berkeley, has written extensively about framing and metaphors. We know, as trial lawyers, the importance of how we frame our case and the issues in our case. The way we present them and label them has a great deal to do with their acceptance.

Actor Kirk Douglas has written his ninth book Let's Face It age 90 years. It is an entertaining book. One thing he wrote struck me as a lesson for trial lawyers. He says when he gives a speech he always starts out telling the audience he has had a stroke. As a result, he tells them, he has to speak slowly to be understood. However, he goes on, he's found that when he does speak slowly people listen because they think he is going to say something important and the audience laughs. But, the fact is that trial lawyers tend to talk too fast and the often ignore the power of the pause as well as silence. When we are nervous we tend to talk  too fast. When we change pace, pause, raise and lower our voice we capture as well as hold attention. We can learn from Kirk Douglas a lesson in communication