I’ve written about communication concepts before, but in reviewing material for at talk I’m giving I was reminded once again of the basics that we trial lawyers must have in mind when we try cases.
THE COMMUNICATION PROCESS
We must first remember that non verbal communication is of extreme importance when we are trying lawsuits. Professor Albert Mehrabian UCLA known for his pioneering work in the field of nonverbal communication. His often cited study reported that in human communication the following is how the message is received:
55% by the way we look – facial and body expression
38% by the way the words are said
7% by the words we use
Note the importance of non verbal communication compared to only the words we use. We need to keep this important fact in mind when communicating with the jury. Even such subtle matters as the non verbal communication of squarely facing the person we are talking to by pointing our heart towards the person in an open position can be important. Uncrossed arms (not in the position of protecting the hear) coat unbuttoned with full eye contact can be a significant factor in our communications with jurors.
Let’s also remember people have a dominate way of receiving communication. Neuro Linquistic Programing or NLP is one useful tool to assist us in communicating. Richard Bandler, one of the creators of NLP has defined it as: "NLP is an attitude and a methodology that leaves behind a trail of techniques." It is simply one of the many useful models for understanding and working with human behavior. We learn from this source that people generally have a dominate way of receiving information:
55% visual – picturing things in our mind
30% Kinesthetic – internal feelings
15% auditory – internal talking to ourselves
While one doesn’t have single method of receiving and processing information usually one will dominate. Visual people prefer to talk and think in pictures. "Can you see how that might happen? Kinesthetic people prefer feelings. "Are you able to get your hands around that idea?"
Auditory people prefer sounds "Can you hear what I’m saying?"
We should listen for the person’s preferred method of communicating and talk to them in that manner. If you say to the visual person, "what are your feelings about that issue?" you aren’t going to have the same reaction as if you had instead said "what are your views about that?
NLP teaches that the "map is not the territory" that is, communication is what people understood us to say and not what we said or what we may have meant to say. All that counts in communication is what the other person understood and not what we intended or even what we actually said. This is the reason for simplicity, brevity and clarity in our communications.
We need to learn to become expert listeners. We should stop talking and start asking. Pro-active listening consists of acknowledging that you have heard and asking open ended (not closed) questions: why, what, when, where, how, who. This is not repeating back what was said such as "so you feel…" but active listening.
We also must keep in mind the limitations we have in giving and receiving information. The communications we give in a court room need to move through "working memory" and into "long term memory." Our ability to absorb information is limited. We need to present information clearly and simply as well as repeat it in order for it to get from working memory into long term memory. Offering no more than three points at a time is a good principle to follow. Less is usually more in persuasion. Communication is best given in story telling. The story has to be short, simple and compelling.
TECHNIQUES IN COMMUNICATION
UCLA linguist George Lakoff has written extensively on communications. He has published about the importance of framing. How we express a concept has great significance. If the idea is framed as "clear cut logging" we have a far different reaction then if it is framed as "renewal of our forests." He has also documented how important metaphors are in our communications. They serve as a short cut to analysis. "The straw that broke the camel’s back" is a classic illustration of this idea. The phrase conveys a whole concept in one short statement. Lakoff and others have made it clear that politics and trials are really about the moral values and belief’s of the people deciding issues. Right vs wrong is involved in decision making. We heard much talk about "returning to moral values" during political elections. Translated this refers to adopting a code of moral conduct based upon moral beliefs about situations and facts