Eric Oliver has been a trial consultant since the 1980’s. His consulting business is MetaSystems of Canton, Michigan www.eric-oliver.com. His latest book is Persuasive Communications: 25 Years of Teaching Lawyers. Eric publishes a news letter News From the Mental Edge and this last issue has articles I enjoyed reading. Here are a few thoughts taken at random from the issue.

In an article about spotting lies, Neely Tucker quotes Dr. Paul Ekman, who has spent his life studying non verbal communication, especially those instantaneous facial reactions that people have that reveal their true feelings. She writes that Ekman says one of the most common things people do in hiding emotions is to smile. Then there are gestures like waiving the arms or jabbing a finger in the air. These decrease when people tell lies because liars are being careful and unconsciously inhibit their motions. What was interesting to me was the observation that communications 50,000 to 100,000 years ago didn’t have many words so it was non verbal  body language that was our chief means of communication. That sense of communication, it says, are deeply buried in our unconscious and still signal to us meaning when we aren’t fully aware of it. It is that sense we have that some one isn’t being truthful that comes to us irrespective of the words being spoken. 

In an interview of Eric in Lawyer’s Weekly, Eric suggests the possibility of mirroring a particular juror. Mirroring, as you know, refers to repeating in yourself an observable behavior in another person, such as a gesture, rate of speech, tone or other body posture. He suggests when you want to emphasize key testimony you note the juror and mirror it in asking the question when you have the juror’s attention. I hadn’t really thought of applying mirroring to a juror during examination of a witness before.

Eric and Amy Pardiek write in this issue about changing someone’s frame of mind. I particularly liked some of the language they used as leads. Take a section on frames of mind. They wrote "It’s not what you say: it’s how you say it." Doesn’t that capture virtually the whole idea behind framing? Another one was: "The glass is half full or half empty." Wonderful example about how we view the same set of facts. In discussing anchors: "That rings a bell" and my favorite: "Facts don’t decide cases – perception of facts do" That’s the basic truth trial lawyers must accept before they can become great trial lawyers. This idea from neuro linquistic programing teaching is so difficult for lawyers to believe because they think they, and everyone else, are logical, intellectual and rational in their decision making.

In the same article, I liked the way the authors discuss the significance of non verbal communication. My good friend Joshua Karton, one of the great teachers of communications of trial lawyers, and I have had an ongoing discussion about the percentage of non verbal communication involved in overall communication. Here’s what the authors say, which I agree with:

"Nonverbal communication not only exists, it is the major part of almost every communication you choose to offer – or receive. Framing your efforts to deliver a case story that respects that fact can be particularly powerful because while experts disagree about the exact proportion of nonverbal to verbal components in any message none of them claim the majority of any message is contained solely by the content of words alone."

In discussing the importance to people regarding patient safety, the authors offered this standard of care question: "Tell me, doctor, is it fair to say that among the highest priorities, if not the highest for your job is protecting the safety of your patient?" While a little too wordy for me, it captures a wonderful concept which can be re worded for good impact.

Another excellent publication worth reading.