ARE WE PROFESSIONAL SALES PERSONS AS PLAINTIFF TRIAL LAWYERS?

Have you ever thought of your role as a plaintiff’s lawyer that of a salesperson? The truth is that each time we sign up a new client, negotiate a settlement or argue to a judge or jury we are involved in sales through persuasion. We are professionals who are attempting to persuade someone else to buy our product. Our product is not a new car but rather the truth of our client’s story or the righteousness of our position on an issue. Since we are in sales we ought to take time to study the principles of the world of sales in the retail world  to see if there are principles that apply to our work too.

David Mayer and Herbert Greenberg published an article in 1964 devoted to seven years of research regarding salespeople. They concluded that a good salesperson must have at least two basic qualities: empathy and ego drive. Empathy is the ability to understand and feel what another person feels. It doesn’t necessarily mean being sympathetic. One can know what the other person feels without agreeing with that feeling. But this empathy requires the ability to get powerful feedback from the client. This kind of person senses the reaction of emotion and feelings of the other person. Identifying and feeling their attitude, needs and inner emotion is the kind of empathy required by good sales people.

All good trial lawyers have the same quality  of empathy  with their clients.  it is the ability  to put ourselves  inside  our clients  feelings, struggles  and  pain  that allows us to translate this into  advocacy on their behalf.  The same  required  essential quality  of  salespeople  for  empathy  with another human being  applies  to us as trial lawyers.

The second basic quality needed by a good sales person, according to the study, is a particular kind of ego drive that makes the sales person want and need to make the sale and in a personal kind of way. It is a kind of competitive drive that motivates the sale.

Also, salespeople will fail to sell more often than they will succeed. Failure tends to diminish self-confidence. A good salesperson has an ego that is not so weak that failure results in a diminishing drive.  In fact the failure must act as a trigger – as a motivation – towards greater efforts. Have you ever met a plaintiff’s trial lawyer  who was not ego driven  in a competitive way  for their clients benefit?  It is the  inner  drive  to achieve justice for our clients against  sometimes overwhelming odds  that make  great  plaintiff trial lawyers.  We are first and foremost  warriors on behalf of our clients  and the  drive to achieve  justice for our clients is an essential part  of of what we.

There is a dynamic relationship between empathy and ego drive. It takes a combination of both, each working to reinforce the other, to make a successful salesperson. Too much of either is not beneficial.  As plaintiff’s trial lawyers  there is the same  need for balance.  One can be an ego driven  competitive lawyer,  but lacking in empathy for  the client.  We also can be people  who are extremely empathetic  with our clients, but who lack  the  competitive  spirit  needed  for  success  in doing  are plaintiff’s work.  We need a  balance of the two in order to be a successful plaintiff’s lawyer.

In addition to these two basic qualities of a good salesperson,  there are a variety of  concepts  that  are also important to understand and apply. A few of these include the following .

One of the important  techniques used in sales  is framing  to influence thought . If one says “the glass is half empty” a pessimist has framed the fact of the class being only half full. Framing  alters how we will sort, categorize, associate and ultimately give meaning to events objects and behaviors. Another example might be a headline which reads  “FB I agents  surround cult leader’s compound ”  which creates  a  mental picture  vastly different from “FB I agents raid small Christian gathering of women and children.” Both headlines might be accurate but the associated internal images and feelings are different. Successful salespeople frame persuasive arguments by selecting words or images that are positive, negative or neutral in the minds of the audience.

This applies not only  to sales but to our work. All of us should be familiar with this concept in our work as plaintiff trial lawyers. Framing is so essential it can make the difference between success and failure. Identifying the essence of our case issues – those things that resonate with people at a deep value level – is a fundamental step in advocating our case. the next step is to frame them correctly. It can be a case of a doctor who accidently cut in the wrong place or the case of the doctor who was in a hurry during surgery. The perspective we give determines the impression we create.

The concept of mirroring  is well known in the sales field. Mirroring is the practice of  imitating or mimicking  the movements  speech and body language of  another person you are communicating with.  This process creates a sense of empathy  and common connection at an unconscious level with the other person,. It is accomplished by reflecting  back the same hand gestures, postures, rate and style of speech as the individual you are communicating with.  If done subtly and  with a delay of 2 to 4 seconds between  the  other person’s  action or movement  and your mirroring,  it has an unconscious impact on the other individual, creating a sense of bonding or empathy. It is the same idea  as that of finding similarities with the other person and pointing them out. It’s finding out you both belong to the same fraternal organization  or to  the same political party  or like the same  things.  We like people who are  like ourselves.

The practice of mirroring widely discussed in  Neural Linguistic Programming  as a way to create quicker bonds with other people. It has application not merely in sales as a way to motivate buying, but applies to us in our everyday live dealing with other people. It has application to trial lawyers regarding their clients, interviewing people and in our trials, particularly jury selection.

Another concept that applies to sales is  the expectations people have  of us based upon how they picture our role or who we are. They expect their physician  to be wearing a white coat with a stethoscope around his or her neck  or the  military person to be in a uniform. In sales people have a idea about how a credible and trustworthy sales person should dress and act.  We need to be consistent with their expectations unless we are trying to be disruptive  or make a point. That means as  trial lawyers we should dress and act like people who are authoritative as well as professional. We need to talk and act like people who are credible and trustworthy. We  need to meet the expectations people have professionals who are honest and trustworthy. We need to be congruent with their expectations.

Most of these are totally obvious and well known to you and all of us who are in the plaintiff’s trial practice. The reason I have presented them is because I think we can forget that we are really professional sales people who have a product to sell. The product is justice for our clients. Certainly we are bound by a code of professional conduct that those in sales are not bound by, but we still can learn from the basic rules of persuasion and those in the sales field.

THE A-B-C’s OF NEGOTIATION

I’d like to review the basic simple ideas of negotiation, which most of you already are totally aware about, but perhaps younger lawyers might benefit from.

Pawn Stars is a popular TV show which features people bringing various items into the pawn shop and selling them to the pawn shop owners. Rick Harrison, one of the owners, is frequently shown on the program negotiating with the seller over the price he will pay for the item. If you want to see an example after example of how not to negotiate watch the sellers attempt to get the best price they can for their item. Virtually every one of them violate the fundamental rules of negotiation.

For a review of what we all know are the basics of negotiation let me start with a recent show I watched. A woman had a set of large antique wooden doors she wanted to sell to the pawn shop. Before she negotiated, she disclosed on camera, she intended to ask for $5000, but would take a minimum of $1000. She did the first step correctly. She had checked background information and comparing her purchase price to her evaluation of the fair market value of the doors established a minimum.

In simple injury cases, following a traditional approach,  the first thing we need to do with our cases for settlement negotiation is to review the likely jury verdict in the venue where we will have to try  the case. That involves (1) the total insurance coverage available to us (2) the likely chance of winning given liability factors and (3) the probable value range of the injuries and damages. The balance between liability evaluation and damages represents a range of percentage of winning and value of injuries. The total is a range of likely verdict which is then reduced in amount for settlement benefit.

Next, we need to determine our demand amount. With the exception of “must settle” cases we always make that amount substantially more than our verdict evaluation for a lot of reasons, the chief one being you might just get it and it allows room for negotiation.

In this example, she had established her minimum and had set her maximum at a range that was substantially more than her minimum. So far, so good, assuming she was right about the maximum value of the doors being $5000 and wasn’t leaving money on the table.

When she told him she wanted to sell the doors, the first thing Mr. Harrison did was to ask what she was asking for the doors. She told him she wanted $5000. Note that there is an advantage in having the other person go first in saying how much they are after. It makes  them set the maximum range which might be lower than you are willing to pay and forces the other person to fix the negotiation range.

When he heard her amount, Mr. Harrison exhibited shock and disbelief, shaking his head . The first rule of negotiation is that no matter what the other person offers, even if more than you are willing to settle for, you always are in disbelief at the unfairness of the offer. There is ample psychology to justify doing this and he did it well.

He followed that with his pointing out to her various defects or problems that he found in the doors. You know the drill – you are at the car lot and after hearing the salesperson’s purchase price for the car, you began pointing out problems with it everywhere and reasons why the price just isn’t going to work. Offering reasons why the number is unfair gives  the other person an excuse to adopt a new figure.

Mr. Harrison then counter offered $500. Look at the spread he created between the high of $5000 and his $500. There is a $4500 difference which allows plenty of negotiation room. More importantly, sets the boundaries so far apart that it signals a low evaluation by the seller and creates a low mid point as well.

The seller then complained  the figure was too low and gave reasons why  the doors were more valuable. She then offers to sell them for $1000, her minimum number! She dropped from her opening demand directly to her minimum  figure of $1000. We all know that this was an entirely wrong tactic unless she has decided this is a take or leave it offer and plans to walk if he declines. It’s wrong for many reasons.

  1. She gave the buyer and immediate $4500 discount without getting anything in return.
  2. She failed to see that the only response to that would be a counter offer for less which would be below her minimum
  3. She has reset the negotiation range between his $500 and her $1000 leaving no possibility of getting a mid point number

What should she have done? She should have applied the first rule of negotiation: shock and disbelief at such a low figure for such valuable doors.  Her counter proposal after his first response should have been close to her opening demand to test how firm Mr. Harrison was about his number.  With her staying high, the back and forth exchanges would have revealed whether there was a reasonable chance of settlement and given her a much better chance of a larger payment for the doors. She torpedoed her chances by her response.

Of course, her counter offer resulted in a counter proposal from Mr. Harrison for less than her minimum figure: $800. Note that his figure is perfect from his standpoint. First, even if he thought the doors were worth a whole lot more than $1000, he wants to get the best possible figure so instead of agreeing to a bargain he offers less than she proposes. Plus, he stays close to his original figure to test her resolve. For him, it is a win – win situation.

You can guess the outcome which resulted in a sale. Afterwards, the seller says outside the pawn shop that even though she didn’t get what she wanted she is happy because she paid less for the doors. Note our human psychology. We always rationalize our outcomes to our favor. We pay more than we should have for the car, but find reasons why it was still a good deal. Which brings up my last point. It is important you always leave the other side with the idea that they got a good deal in the negotiation. You may see them again and you sure don’t want to gloat about taking advantage over them because they will not forget it.

I’ve mentioned Roger Dawson’s great publications on negotiation which I recommend to trial lawyers. You might also want to see Harvard University publications on the subject: http://www.pon.harvard.edu/freemium/improve-your-negotiation-skills-negotiation-training-from-the-pros/

DOES THE AMOUNT YOU ASK FOR AS A VERDICT EFFECT THE RESULT?

Nationallly known plaintiff’s trial lawyer Rick Friedman recently called attention to the article from the University of Denver Sturm College law by John Campbell and others entitled: “Countering the plaintiffs anchor: Jury simulations to evaluate damages arguments.” The article deals with an important research project about  the principle of anchoring which has direct application to the plaintiff’s damage arguments. I think plaintiff lawyers should read this article.

Neuro linguistic programming deals extensively with the concept of anchoring and is a good resource for learning techniques of anchoring. What is anchoring? Anchors are stimuli that produce  a state of mind – thoughts and emotions. For example, the smell of bread may take you back to a memory about your childhood. A tune you hear on the radio may remind you of an event or a person. These are anchors that operate automatically and often without your being aware of the triggers. Neuro linguistic programming deals extensively with the concept of anchoring and is a good resource for learning techniques of anchoring.

Anchors can be visual, auditory and kenesthetic. How do you create a personal anchor? The simple formula is:  (A) decide on the state you want to anchor. What feeling or action are you trying to anchor? (B) choose an anchor, or anchors, that you will use to trigger the state. For example, make a fist, or a finger and thumb pressed together or pull on your ear lobe. This will be the trigger or stimulus that will create the state you wish. (C) recall a memory or vividly imagine a situation where you experienced the state you want to anchor. Make the image sharp and bright. Makes sounds clear. Use a word that enhances the feeling for example, “yes!.” And (D) activate the anchor by the trigger you selected. Repeat the process to make it permanent.

Anchors are commonly used in marketing. One of the common applications deals with presenting prices. A high number is used to anchor an impression about a lower price for an article. The real estate agent shows the most expensive house first before showing the less expensive ones. The larger number operates as an anchor affecting the impression of the price of other houses. In 1974 psychologist did a study about the anchoring effect. Participants watched a roulette wheel that, unknowing to them, was rigged to stop at either 10 or 65.  Participants were asked to estimate the number of countries in Africa belonging to the United Nations. For the half of the participants where the roulette wheel stopped on 10, they gave the median estimate of 25 countries. For the other half, where the wheel stopped on 65, their median estimate was 45 countries. The random anchors dramatically affected the judgment of the participants as to their estimates even though the number on the roulette wheel  had nothing at all to do with countries in Africa belonging to the U.N. The number became an anchor that  primed the judgment for the estimate.

In the article from the Sturm College of Law, the researchers studied this concept of anchoring. The issue they studied was the effect of the amount of money the plaintiff asked for on the ultimate verdict. In addition they studied the impact of a defendant who either ignored the number plaintiff suggested or suggested an alternative number.

This important article answers the question of  whether  a plaintiff is better off  not  suggesting any number or should avoid asking for “too much” because it will anger the jury.  In summary, the study found that anchoring effects  were extremely powerful. The plaintiff was able to dramatically increase the potential recovery by simply demanding more money. In the study, damages increased an average of 430% by this tactic and also found it had a small affect on winning. Their conclusion was that the plaintiff should always  asking for a damage figure and should request extremely high damages  unless the concern is maximizing the chance of recovery.

As to the defendant, it is a mistake for the defense attorney to not provide the juries with an alternative to the plaintiff’s damage award generally. When the defendants suggested a lower number in this study the defendant won more cases (defendant prevail 81.7%) and when no alternative number was suggested it decreased by 19.4%. However suggesting an alternative lower figure by the defendant did not prove to have any statistical significant effect on damages. The study concluded that the defendants “lack an effective way to rebut the plaintiff’s outrageously high anchor.”

The article conclusion is significant for plaintiffs attorneys. Anchoring works. Although the plaintiff who shoots for the stars takes a credibility risk that reduces the chances of winning, it is outweighed by the higher damages award if plaintiff win according to this study.  Also, the three strategies available to defendants all failed to overcome the anchoring effect.

This study confirms the most common viewpoint that it is always a mistake for the plaintiff not to suggest a number to the jury and letting the jury  “figure it out for themselves.” More importantly, it reflects on the conventional fear that asking for too much money will cause the jurors to become angry and do the opposite. While there certainly is logic to that view, particularly in thin liability cases  or cases where the injuries are questionable or exaggerated, overal should ask for a large verdict.

Thanks  to Rick for calling  attention to this study as  I believe this is an important article which should be applied with a large measure of common sense when applied to a specific case. However, it confirms what other studies have shown which is that there is a “priming” principle or anchor which is brought into play by asking for a substantial amount from the jury. Let us reevaluate the amount we asked the jury for to ensure that it is consistent with the real injuries and the case with this principle in mind.