Succeeding in Your Practice and in Your Life

• Author: Stewart I. Edelstein
• Profession: Commercial trial lawyer
• Pages: 289-358

289

CHAPTER SEVEN

SUCCEEDING IN YOUR

PRACTICE AND IN

YOUR LIFE

A. THE ART OF PERSUASION

As a trial law yer, you know that you must persuade opposing counsel,

judges, jurors, arbitrators, and mediators, always crafting your message

to appeal to the person you are tr ying to convince. But have you consid-

ered honing your persuasion skills? We’ll start with Socrates and move

on to cookie recipes, bumper stickers, billboards, Beethoven’s Fifth

Symphony, the making of sap into syrup, pointillism, and a two-minute

video you will never forget.

Socrates’ theory of the psychology of persuasion is as viable today

as it was more than 2,000 years ago because even though we now have

technological tools to enhance our per suasive powers, the fundamentals

of human nature remai n the same. This discussion explores the three

elements of persuasion that Socrates art iculated: ethos (source credibil-

ity), logos (message substance), and pathos (emotional impact).

1. Source credibility.

Unless you are reliable as a source of information (i.e., unless you have

ethos), your message will not be convincing. How do you enhance your

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credibility? By demonstrati ng relevant expertise, trust worthiness, accu-

racy in each fact and poi nt of law you espouse, and confidence as demon-

strated by the way you present yourself. Consider your own experience

as a recipient of information when someone is trying to persuade you.

Your initial thoughts, even before hearing t he substance of a message,

are these: Why should I buy whatever this person is selling? What are

the credentials of this person? Is this person trustworthy? What educa-

tion, train ing, and experience inform the subst ance of what I am about

to hear?

You present yourself as a reliable source of information by having a

command of the facts and the law relevant to your case and by avoiding

common traps such as ignoring harmful fact s, exaggerating good facts,

distorting t he record in any number of ways, citing dictum as holding,

failing to deal w ith adverse precedent cited by opposing counsel, and

relying on fl imsy logic. If you fall prey to any of these enticements, your

credibility is shot.

Consider this analog y: Each ingredient used when you make choco-

late chip cookies is a fact or a point of law. If you add too much salt to

the batter (i.e., if you exaggerate just one fact or point of law), the entire

batch of cookies is ruined. On t he other hand, if you carefully measure

out the right quantity of each ingredient, your cookies are delicious.

Consider Edward R. Murrow’s observation: “To be persuasive we must

be believable; to be believable we must be credible; to be credible we

must be truthf ul.”

There are no shortcuts to achieve ethos. Your hard work in master-

ing the facts and t he law and presenting both with precise accuracy

will pay off in establishing yourself as a credible source of informa-

tion. That credibility is c umulative because once you establish your

reputation as a reliable source, you have a leg up even before you speak.

Your credibility with judges is more importa nt than winning any

case, so don’t take shortcuts or fall into the common traps mentioned

pre vi ously.

When you do speak, you should do so with confidence. How do

you demonstrate confidence? If you have mastered the facts a nd law in

a particul ar case, you enter the courtroom assured that even though the

ball takes unexpected bounces in the heat of battle, you are prepared.

You dress professionally (when is the last time you polished your shoes?);

you present yourself with a forthright demeanor; you use gestures as

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Succeeding in Your Practice an d in Your Life | 291

appropriate while keeping your hands away from your face; and you

speak in a clear, strong, dynam ic voice, which you use as an instrument.

More about body language: Don’t be afraid to use your hands. Your

gestures should be natural, not an imitation of anyone else, not canned,

but flowing natu rally from what you say. Use gestures at key moments,

sparingly, in ways that are genuine to your personality.

Keep gestures within a circle circu mscribed from the top of your

eyes, out to the tips of your outstretched hands, down to your belly,

and back up to your eyes. Otherw ise, your gestures will be a detri-

ment rather than an enhancement of your presence. Don’t fidget, tap,

or jingle—such tics make you appear unsure, nervous, and unprepared.

When you move, move wit h a purpose.

You think before you talk; you avoid qualif iers such as “in my view,”

“as I recall,” and “I think t he record will probably reflect . . .”; you avoid

interrupters such as “um” and “uh” and you don’t hem and haw or stam-

mer. Studies show that even in face-to-face communications, what you

say is not nearly as important as how you present yourself and how you

say it. Body language is a powerf ul and sometimes decisive form of

speech all its own.

2. Substance of message.

How do you enhance logos, the guts of your message? Clarity, simplic-

ity, concreteness, multisense appeal, primac y, and recency. Outline what

you want to communicate; then after assuring yourself that you have

achieved a logical flow, prepare your first draft. With computers, it is

easy to overwrite. Go ahead at first. But then edit, edit, edit so that you

eliminate all words t hat do not do work. (If it weren’t for the need to

emphasize this point, t he prior sentence could be edited by eliminating

the two extra “edits.”)

The great lexicographer Samuel Johnson employs a memorable

analogy to drive this point home: “A man who uses a great many words

to express his meaning is like a bad marksman who instead of aiming

a single stone at an object takes up a handfu l and throws at it in hopes

he may hit.” And here is William Zinsser’s way of putting it: “Writing

improves in direct ratio to t he things we can keep out of it that shouldn’t

be there.” Zinsser wrote On Writing Well, which I recommend to you.

See Appendix B. When ma king your final edit s, try this: omit each word

you can without losing meaning.

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