Persuasion Principles for Lawyers

• Publication year: 2023

Persuasion Principles for Lawyers

Jarome E. Gautreaux

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Persuasion Principles for Lawyers

Jarome E. Gautreaux^*

I. Introduction

Lawyers spend a lot of time trying to persuade others. In this, they are not unlike most every other human being. Whether one spouse is trying to get the other to attend a sporting event they normally wouldn't enjoy, or a car salesperson is trying to convince a potential buyer to buy the latest model convertible, or a doctor is trying to get their patient to stop smoking, all of us engage in persuasion a large portion of the time. It isn't a stretch to say that persuading others, or at least trying to, is part of the fabric of human social life.

But despite this ubiquity, most of us are generally not very good at persuasion. That's not because of a lack of intelligence or ability or desire to persuade. Most of us very much want to be persuasive. Instead, it's likely because there are a lot of myths and half-truths that are accepted as principles of persuasion.¹ Some would say that simply having the best evidence for one's position is most persuasive, while others would say that charisma is the most important component of persuasion. Others believe that appeals to reason and constructing elegant arguments, with clear premises and conclusions, is most persuasive. Others, including some in the field of politics, might say that appealing to fear or social anxiety is most persuasive.

Rather than accepting these assertions about persuasion at face value, it would be helpful to understand the many ways in which persuasiveness can be enhanced, as shown by the social science research, and applied to the practice of law.² Lawyers have a particular need for this sort of clarity since they likely spend more time trying to persuade

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others than most of the general population; lawyers may have to persuade judges, juries, clients, mediators, opposing counsel, and others as part of their daily practice. Thus, advocacy can be enhanced by understanding some proven principles of persuasion, along with a basic understanding of how to apply them.

This Article consists of two main sections. The first section discusses some research about how humans process information and make decisions. The second section offers some suggestions about how to use this knowledge about decision-making and human psychology to be a more persuasive advocate. The overall goal is to try to answer this question: given what we have discovered about how the mind actually works, what can lawyers do to appeal to that mind and increase their persuasiveness?

II. Do We Know What We Think We Know: Some Recent Findings About Judgment and Decision-Making

The study of persuasion has ancient roots. Aristotle's well-known division of persuasion into logos, ethos, and pathos is still useful for advocates.³ But there wasn't a great deal of systemization of the study of persuasion until the early 1900s.⁴ But even as the social sciences were vigorously exploring the topic of persuasion, lawyers tended to lag behind, relying on folk wisdom or tradition to increase persuasiveness.⁵ Legal education also generally focuses on a fairly simple model of persuasion, which often remains implicit rather than openly evaluated: evidence is presented, arguments are made, and judgments are made by the decision-maker based on the quality and quantity of the evidence and the arguments. This model deemphasizes factors other than the evidence and rational argument.

Nothing in this paper is intended to argue that evidence and argument are unimportant; any lawyer taking such a position would have an uphill battle. And, importantly, readers will be glad to know that evidence

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remains an important, if not the most important, single most persuasive factor in decision-making by juries.⁶

However, social science has greatly expanded upon the Aristotelian model, and it has supplanted, or at least greatly supplemented, the folk wisdom or hunches often used by attorneys. It has also explained, at least in part, how the mind may not always act rationally or fulfill its capability of careful evaluation of evidence in all contexts. We now know a great deal more about human decision-making than ever before. Evidence remains crucially important, but many other factors affect the ability to be persuasive.

For example, we know that decision-making is not a unitary process. There are at least two main "systems" by which we reach conclusions. These are referred to as System One, the "fast" system, and System Two, the "slow" system, by Daniel Kahneman.⁷ The fast system, not surprisingly, is the system of our brains that makes quick decisions, often without our conscious control. This system is the one that uses heuristics or shortcuts to make decisions. The slow system, on the other hand, is the system that lawyers mostly use in law school; it is conscious decision-making and relies on careful deliberation and analysis.

This division makes a certain amount of intuitive sense. It would be hard to imagine a world where we had to engage in deliberate thought for our every action. We wouldn't, for example, want to engage in a long analysis of the pros and cons of running out of a house on fire; we'd simply want to quickly react. We also wouldn't want to make a quick snap judgment about how to fly a plane if we were a pilot (hey, it looks pretty shiny and safe; let's take off!). Instead, we'd want to take our time and use a checklist to make sure we were safe and ready to fly. The idea here is that our brains have evolved to save effort—we often make fast decisions, often using mental shortcuts, in situations where that is usually appropriate, and slower decisions when more deliberation is typically involved. But, as we'll see, the systems are not perfect.

This section of the Article summarizes these shortcuts and then examines some additional mental phenomena that should be considered in lawyers' attempts to be persuasive.

A. Heuristics—Mental Shortcuts

It is important to remember that none of the shortcuts work in a simple deterministic fashion; the more deliberative reasoning system

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(System Two) can overcome the quick, initial judgments made by System one; this most often happens when there is both time and motivation on the part of the message recipient.⁸ So none of these shortcuts or mental phenomena discussed here should be thought of as manipulative devices, or simple "buttons" that can be pressed to produce a desired belief or behavior outside conscious control.

One of these shortcuts revealed by brain science that is important in many legal contexts is "anchoring." Anchoring refers to the influence of even irrelevant information to judgments.⁹ Jurors seem to quickly "anchor" their judgments to previously presented information, even if it makes no rational sense.

For example, suppose a plaintiff in a civil case repeats a certain number, say $5,000,000, several times during a trial. Even in a case that isn't objectively worth $5,000,000, the anchoring shortcut suggests that simply using the large number will influence jurors' assessment of the damage award to make it closer to the $5,000,000.¹⁰

Another important shortcut is the "availability" shortcut. This refers to the tendency to judge the frequency of an occurrence by how easy examples of that occurrence come to mind.¹¹ More simply, we tend to think that things we are familiar with happen more often than things we are unfamiliar with. For example, if asked whether more people die from falling airplane parts or shark attacks, most people would say shark attacks because we are more familiar with shark attacks; but the opposite is true. That's the availability heuristic at work.¹²

In the legal context, this shortcut could be important in many ways, including jurors' assessment of liability or punitive damages. If jurors believe that a particular actor engaged in conduct that was very unusual or abnormal from the...