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.

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