Chapter 11

• Jurisdiction: United States

Chapter 11 Questions That Persuade

The trouble with a lecture is that it answers questions that haven't been asked.

—Alan Alda¹

Questions that induce curiosity can lead to self-persuasion. Curiosity has been described as a need to know and can be sparked by a question like, "Why do you think that happened?" Studies have shown that when a question like that is posed to people, they don't wait around for the answer; instead, they surmise for themselves what the answer is. And because they figured it out themselves, it bears none of the phenomena of reactance or belief challenge.

The Devil's Advocate

Chapter 10 discussed V.S. Ramachandran's theory that the left hemisphere of the brain is designed to protect and maintain the status quo.² But Ramachandran also theorized that the right hemisphere is fundamentally different and acts as a "devil's advocate" that forces the left hemisphere to revise its previous belief system. Stated another way, the right brain looks for inconsistencies and questions the status quo. When the left brain can no longer resist, it gives way, and a different belief becomes part of a new status quo.

Even though the left brain resists being convinced, the right brain, acting as devil's advocate, can overcome the resistance. The title of "Devil's Advocate" was given to a canon lawyer of the Catholic Church in 1587. When a candidate for sainthood was nominated, the job of the Devil's Advocate was to take a skeptical view of the candidate's character, to look for holes in the evidence, and to argue that any miracles attributed to the candidate were fraudulent. In modern usage, it is a person who challenges assumptions to test the validity of a position.

The Devil's Advocate Approach to Persuasion

Self-persuasion is the goal of the devil's advocate technique. In the seventeenth century, French philosopher Blaise Pascal observed: "People are usually more convinced by reasons they discovered themselves than by those found out by others." This principle was studied by Elliot Aronson, who observed:

Self-persuasion is almost always a more powerful form of persuasion (deeper, longer lasting) than more traditional persuasion techniques—that is, than being directly persuaded by another person, no matter how clever, convincing, expert, and trustworthy that other person might be—precisely because in direct persuasion, the audience is constantly aware of the fact that they have been persuaded by another. Where self-persuasion occurs, people are convinced that the motivation for change has come from within.³

Using the methods of persuasion discussed above—that is, posing simple, non-confrontational questions that spark curiosity and self-persuasion—you can be the devil's advocate by spurring the right brain into action and motivating the "do nothing," "leave me alone" left brain to accept the logic of your advocacy. This devil's advocate approach to persuasion can be used at every stage of the trial.

Voir Dire

Your first opportunity to persuade is voir dire. The goal of voir dire is to identify harmful bias in prospective jurors. However, the process can also start jurors down the path of considering concepts that are crucial to your case. Plaintiff attorneys frequently start early in their advocacy to the panel:

• "Can you award a lot of money?" "Why not?"
• "Will you hold the defendants accountable for their misdeeds?"
• "You won't?" "Why?"
• "Do you think doctors should be required to follow the rules?"
• "Please explain why you think there are exceptions?"

And if you represent a plaintiff, don't you hate it when defense counsel gets jurors to agree:

• "Just because somebody can file a lawsuit doesn't mean it has any merit," or
• "I'll be able to look the plaintiff in the eye at the end of the case and tell her she won't get any money," or
• "People need to take responsibility for their own actions."

It's pretty low-hanging fruit because it's their belief system, locked securely in their left brain.

In voir dire, the jurors don't want to be there. And you are not persuading anybody. In fact, the more you try to get jurors to agree with the proposition you are advocating, the more they will resent your intrusion into their private thoughts and beliefs. (Reactance, remember?) In the 2015 Republican presidential debates, the moderator (like a lawyer) posed "gotcha" questions to candidates. But, unlike prospective jurors, the candidates felt more empowered, and when the moderator asked questions they didn't like, they didn't answer; instead, they attacked the moderator. This was not a new tactic; Newt Gingrich used it in 2012 when asked about allegations made against him by a former wife. He said he was "appalled" that he would be asked such a question, and the audience applauded wildly. Jurors can't do that, but what they can do is decide to take a contrary position...