For many years the marketing research industry has studied effective persuasion to encourage sales of every kind. Psychologists have been involved in these studies regarding words, language and illustrations used in advertising and marketing,  These studies have revealed that there are particular words and phrases which have particular significance.  Some of these have particular significance to trial lawyers in representing clients at trial. Here are some examples worth considering in this regard:

1. Because. Studies have shown the importance of giving a reason for making a request from another person. “Because” stimulates motivation to agree to a request. In a study by  Ellen Langer, a professor of psychology at Harvard, she had participants go to the front of a line of people using a copy machine. They would ask the person using the machine if they could cut in front of them and make a copy. Some gave no reason except to use the machine Others offered a reason such as they were late for a meeting. The results showed that people who gave a reason, even it was only that they were in a hurry were granted permission 93% of the time. However, those who gave no reason were granted permission only 60% of the time, What is particularly interesting is that the higher percentage granted permission was not dependent upon the excuse offered so long as “because” was used. 

In our trial work we need to remember the importance of always offering a reason for what we are asking to be done. It isn’t enough to ask jurors to take a requested action. We must also give them a reason why they should do so. This is particularly true in summation. It is important to always give the jury a reason for what we ask. Using the court’s instructions is often helpful to justify the reason you are asking the jury to do. “Because” is a word with the power of motivation. Remember, if we want someone to do something tell them why.

• Imagine: This word has been shown to have subconscious significance in persuasion. It is sometimes referred to as a “trance” word. That’s because studies have shown that when  someone imagines something,  the process involves suspending the conscious mind while mentally exploring the idea suggested. This results in a  momentary trance like state of mind. The rational mind’s critical evaluation is suspended for that period and the subconscious mind is accessed directly. When we imagine something, we create an impactful picture in our subconscious mind.

An example is if we ask jurors to imagine what our health care would be like if we didn’t have standards of care that are enforced. Doing so triggers a reaction in the juror’s subconscious mind. It doesn’t involve rational analysis, but instead mental picture or reaction which influences our impression. For that reason, imagine it has particular power of persuasion. The are other words and phrases which have a similar effect as “imagine” by inviting the subconscious mind to visualize. Consider these:

• Just pretend: “Just pretend, for a minute, you were there & saw this take place”
• What’s it like when: “What’s it like when your doctor made a harmful mistake”?
• What would it be like if: “What would it be like if you had a scar for life?”
• Suppose: “Suppose, for a moment, you were faced with a decision like this.”
• Remember: “Can you remember a time when you were confined to bed?”
• How would it feel: “How would feel to be told there is no cure & no hop

These words and phrases invite employing imagination. Imagination has particular power and should be part of our presentations at trial. However, be careful in crafting questions that avoid violating any prohibited  “golden rule” argument.

• The right to.  Frank Luntz, in his book Words That Work has pointed out that

Americans have always believed in the concept of people’s “rights.” We may have different ideas about what these rights are, but we all believe no one should be allowed to take our rights  away from us for any reason. Furthermore, when something is our right, it’s not just an ordinary privilege; it’s an essential right that belongs to us. Equally important is the ability to exercise the right. Beginning with the nation’s founding, Americans have been committed to the idea of having rights as part of American culture. When we apply “rights to  tort law, people generally believe we have the right not to be injured and if injured we have the right to be compensated fully for all harm done. Jurors have the right to expect witnesses to testify honestly and for lawyers to be trustworthy as well as credible. The phrase resonates with most Americans and has power when properly applied and used by trial lawyers.

• Please: “Please” is not as commonly used in our relationships as in the past. However, saying “please” is not merely fulfilling a social norm, but has an inherent power as well, when sincerely said. It communicates rapport, a relationship and respect. It also suggests the other person is in control. When we demonstrate these subconscious ideas to others, they are more willing to return the same. When we are polite and say please in a genuine way people are more likely to respond in a favorable way to you. Civility has become a factor in trials not just because of wanting to follow bar or ethical expectations. It’s equally important in trial persuasion. Studies have shown that the jurors expect the lawyers to normally act in a professional and civil manner during trials. Furthermore, jurors observe how lawyers conduct themselves regarding court personnel and others they deal with. Exercising appropriate manners enhances our likability as well as trustworthiness in the jurors views.

• Thank you: Expressing appreciation isn’t just good manners, it has a persuasion aspect a well. There are a variety of ways in which we can express appreciation. It’s been shown, however, that these two simple words have something special about their effect when said in a sincere and genuine way. This expression not only conveys our gratitude but is an acknowledgement the other person matters. Laura Trics gave a TED talk “Remember to Say Thank You” in which she argued that those two words can be incredibly powerful especially when the person you thank isn’t expecting it. She makes the point that most all of us want and expect to be thanked for the things we do. Being appreciated really motivates us, both at work and life. Second, she says it is important in our relationships to say thank you rather than assume the other person knows you are thankful.

• You:  Using the word “you” and saying the other person’s name has been shown to create a favorable impressions.  In a study done at Yale the word” you” was ranked as the most influential power word in the English language. In addition to using the word, it has also  been found that using a person’s name increases the power of compliance even more. Talking about “you” and using a person’s name has a unique appeal to the person you are speaking to. Dale Carnegie wisely noted that “A person’s name is to him or her the sweetest and most important sound in any language.” Using a person’s name or the word “you” automatically cause an alert in the other person to pay attention. It’s ingrained in us. Watch charismatic people. The first thing they ask for is the other person’s name. They will use the name frequently in conversation such as: “So Mike, tell me what brings you here?” “Does your family live here, Jane?” and so on. Then it will be the last thing they say when they leave.  Remember this when you are dealing with the court personnel who are close to the judge such as the clerk, bailiff and court reporter. You may not be allowed to call jurors by name, but it may be appropriate to show you acknowledge their presence. An example, would be: “Please turn the exhibit at so that juror number twelve can see it?” Using someone’s name has a magic to it for the person involved.

• Control We all have a need to feel like we are in control of our situations and our lives. When we feel we are not in control we feel threatened. A sense of being in control makes us less anxious and more confident. When we suggest to another person they are in our control, the normal response is to take a defensive position. We should make the other person feel like they are free to make any decision and that they are in control. Acknowledging the power of the other person to control their decisions encourages a more compliant attitude.

For that reason, acknowledging the power of the jury through their verdict in trials is important Gerry Spence has in final summation, told jurors they have the sole power to decide the outcome of case which has importance. He has used the analogy of the jurors having the power to write a check for any amount they want. In this way he empowers the jury decide to render his recommended verdict. The same jury empowerment was illustrated in the movie Verdict Paul Newman. As the plaintiff lawyer in a medical malpractice case, he tells the jury that they are in control. He tells them: “Today you are the law. You are the law. Not some book, not the lawyers, not a marble statue or the trappings of the court. Today you are the law.”

That’s why when we argue our position to the judge, we should never suggest that the judge is compelled to do something under existing law or has no choice but to find in our favor. That only produces a defiant attitude. Instead, we should point out the enormous power and control the judge has to do justice on an issue. We do the same with juries. Instead of suggesting they have no choice but to agree with us and create a negative reaction, we should acknowledge they are in total control to do the right thing.  

CONCLUSION

Words have importance. In matters of persuasion, some words are more influential than others.  Perhaps it is an exaggeration to refer to these words and phrases as being “magic,” but certainly they have a demonstrated and proven power when used appropriately. Our job as plaintiff advocates for our clients requires us to employ all the ethical and persuasive techniques appropriate to the case. Consider incorporating the these in your next presentation.