I recently read two books on persuasion and communication. Thank You for Arguing by Jay Heinrichs and Lawyers, Judges and Semi Rational Beasts by Daniel Holloway. They both had excellent advice for trial lawyers. Here is a summary of ideas from both books

As we all know, an essential part of persuasion is showing you share your audience’s values. We divide the world into US and THEM, and reserve good feeling and thinking for the former. We are tribal creatures, and tribal affiliations exert profound influence on our feeling. Tribalism raises the importance of presenting yourself and your client in a way that allows judges, law clerks, and jurors to relate to you and your client. We need to demonstrate our membership in their “tribe” through common values and beliefs. Persuasion works by accommodating the decision-maker’s existing values, attitudes, and beliefs. But, sharing your audience’s values alone is not sufficient. They also must believe that you know what you are talking about and are qualified as well as trustworthy. We tend to trust those who trust us. Integrity and competence serve as general markers of trustworthiness. We think well of people who think well of us. Respect and value the person you are talking to. We give respect and generosity to those who give it to us. We give what we get, and so does most everyone else.

When people show no commitment to accuracy, fairness, or reasonableness, you cannot rely on them to tell you the full truth, to interpret things fairly, to make reasonable requests. Tell the truth — including the essential bad parts. We trust people who clearly care about accuracy, fairness, and reasonableness. As an example one book author says: “While an evangelical Christian will respect you for trying to do what Jesus would do, he still won’t let you remove his appendix.” The audience must consider you a sensible person, as well as sufficiently knowledgeable and trustworthy before they will follow you.

We know emotion plays a role in every decision we make. When we communicate emotionally we should always speak simply. The most emotional words of all have just four letters. Less is more, and in pathetic terms, less evokes more. In general we should always use simple speech, but do not use fancy language when you get emotional. Instead, keep everything simple. The moment you begin to confuse someone, to make him think, the frown deepens, the arms cross. Make everything as simple and concrete as possible (while maintaining accuracy). Use language, voice, and body to help the jurors follow, understand, and engage. Make the words no longer than it needs to be. Develop these skills because there is no time or mental space to think about technique during trial. Use simple language and avoid jargon. Make it interesting, clear, and easy.

Try to make your audience feel powerful. Give them a sense of self-control. Research shows that people who feel powerless tend to lash out more.

As you know, how you describe or frame an issue is important. Here are framing techniques: First, find audience commonplace words that favor you. Next, define the issue in the broadest context—one that appeals to the values of the widest audience. Then deal with the specific problem or choice, making sure you speak in the future tense.

We make moral judgments intuitively and automatically. Only then do we rationalize them. The unconscious feeds snap judgments to the conscious. Snap judgments come from the interplay of (a) the feelings and thoughts active in our minds, (b) trust or distrust in the source of the new information, and (c) the new information itself. Snap judgments are usually final judgments. If a judge or juror has already figured a thing out in the past, it is going to take some doing to move them off their pre-written answer. If you have already committed to an idea, hearing strong arguments against it can deepen your commitment to the idea. The emotional tail wags the rational dog. Or, in Jonathan Haidt’s metaphor, emotion is an untrained elephant, and the rational mind is a rider. The rider mostly just goes along for the rids but comes up with reasons to justify what the elephant is doing.

The progressive view is that democracy depends on citizens caring about each other and taking responsibility both for themselves and for others. This yields a view of government with a moral mission: to protect and empower all citizens equally. Conservatives hold the opposite view: that democracy exists to provide citizens with the maximum liberty to pursue their self-interest with little or no commitment to the interests of others. Under this view, there should be as little of the public involved as possible. Instead, as much as possible should be relegated to what we call the private self-interest. Whatever our moral sensibilities, we take pleasure in altruistic punishment. When someone breaks the rules in a way that threatens to harm others, we enjoy punishing the rule-breaker.


These are a few of the ideas from these two excellent books worth considering.


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