Chapter 6

• Jurisdiction: United States

Chapter 6 The What, How, and Why of Persuasion

Trial lawyers are in the business of persuasion. But persuasion is not limited to lawyers. Salespersons, marketers, and advertisers have been figuring out how to get people to do things they weren't previously considering, or buying one brand instead of another, for a long time. There is a parallel universe of science, literature, and experience in how to sell and market.¹ And although there are many differences between sales persuasion and legal persuasion, the fundamental science of how the brain works and how people are influenced is the same. The goal is to apply this science to the work of trial lawyers.

What we were led to believe in law school was that the nature of persuasion was to present facts and that "the best argument will win." As it turns out, that is only theoretically correct. The people you hope to persuade, including judges who try to be unbiased and even-handed, are influenced by culture, emotions, and worldviews. And surprisingly, they are also influenced by hunger, temperature, and other factors over which we have little control. In this and the following chapters, we begin exploring persuasion based on the studies of neuroscientists, psychologists, and sociologists who have tested how the brain reacts to varied situations and influences. It's not the best facts that win; it's the science of how facts are processed. Trial lawyers who understand that science will always have the advantage.

Winning by Science Instead of by Accident

Much of human knowledge is based on experience rather than lecture or study. I recall visiting a botanical garden on the island of Kauai where only native Hawaiian plants and trees grew. There were descriptive signs in front of the flora explaining that this plant aided in digestion, that plant relieved pain from burns, and another plant would cause a painful death. I thought about how the ancient Hawaiians came to this knowledge. Most likely by experience. A friend ate the plant and his upset stomach went away, and when someone ate another plant, she died. So, through the years, a system of anecdotal wisdom came into being.

That's how most of us have learned to try lawsuits. For example, "When Gary used this argument, the jury awarded a million dollars, so I'll use it." Or, "When I told the jurors what they should do, I got hammered, so I won't do that again!" But what if we could craft our trials based on the science of how the brain works, what triggers reactions, and why jurors will accept some ideas and reject others? This chapter, and those that follow, explore these things.

The goal of persuasion is acceptance of the position we advocate. And, like a combination lock, acceptance happens when everything lines up. The idea here is that a listener will not accept information when the circumstances, context, or timing are wrong. David Ball's treatise, Damages 3,² describes the importance of sequencing in the presentation of information. He deals with what to present and how to do it. What and how are important in every presentation, but perhaps more important is why.

The Why of Persuasion

There are two elements that most commercial companies will present to market their product or service: what and how. What the product is and how it is made or rendered. For example, "We sell baby food (what) that we make by using the best ingredients (how)." And, as lawyers, we present what happened and how it happened. For example, "The plaintiff was injured (what) when the defendant drove through a red light (how)." But what is missing from both examples is why. Why should a customer buy the advertised brand instead of another brand, and why should jurors want to find in favor of plaintiff and award damages?

Although the human brain is complex, there are two parts that are fairly well known: the left brain and the right brain. I will greatly simplify the description by identifying them as the rational brain and the emotional brain. The rational brain comes up with the reasons that its owner should do something, but the emotional brain makes its owner desire, empathize, and fear.

The Elephant and the Driver

(Above photo is the author)

Several years ago, I went to Thailand and had the opportunity to visit an elephant camp. I learned how to get on the elephant, give commands, and ride. Although I had some influence on starting, turning, backing up, and stopping the elephant, at no time did I really believe that I was in control. In The Happiness Hypothesis,³ social psychologist Jonathan Haidt wrote that the unconscious mind is like an elephant, and the conscious mind...