{"id":3606,"date":"2022-10-24T20:58:01","date_gmt":"2022-10-24T20:58:01","guid":{"rendered":"https:\/\/law.temple.edu\/aer\/?p=3606"},"modified":"2022-10-24T20:58:01","modified_gmt":"2022-10-24T20:58:01","slug":"persuasion-science-for-trial-lawyers","status":"publish","type":"post","link":"https:\/\/law.temple.edu\/aer\/2022\/10\/24\/persuasion-science-for-trial-lawyers\/","title":{"rendered":"PERSUASION SCIENCE FOR TRIAL LAWYERS"},"content":{"rendered":"

Is trial advocacy art, science, or some of each?\u00a0 The answer is definitely the third, although the science part often gets lost in the shuffle or is alleged science with no data to back it up [think {80% of juries decide the case after opening\u201d or \u201ca picture plus words causes 60% fact retention\u201d].\u00a0 Finding the true science for persuasion takes some work but pays off grandly.<\/p>\n

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Efforts abound \u2013 trial advocacy texts now include a chapter on brain science; lecturers discuss seminal works such as Thinking Fast and Slow:<\/em> and blogs on brain science, cognitive psychology and the courtroom try to fill the gap. \u00a0Words like \u201cdopamine\u201d and \u201con the same wavelength [neural coupling\u201d] are in our vocabulary and teaching slides. \u00a0But to get a full picture, if there is but one book any trial lawyer or trial skills teacher should read this year, it is John Blumberg\u2019s Persuasion Science for Trial Lawyers<\/em>.\u00a0 Reviews that begin in such a manner are often exaggerated or unreliable, but here the label fits.<\/p>\n

Let me begin with who the author is – a trial lawyer and triple-board certified practitioner with extensive involvement in the National Board of Trial Advocacy and the American Board of Trial Advocates.\u00a0 More importantly, he is a lawyer who decided to search out the science of persuasion to inform the part of trial advocacy that is, indeed, science; and he undertook this with a thoroughness that demands attention.<\/p>\n

What does Persuasion Science<\/em> offer?\u00a0 After some introductory chapters it dives, deeply, into the world of psychology as applied or applicable to litigation and trials.\u00a0 It begins in a place we talk about too little – collegiality and the pre-trial relationship with opposing counsel \u2013 and makes the convincing case that adversarial hostility is detrimental to securing a beneficial outcome.\u00a0 Allowing the opponent to save face, and using the technique of \u201cgiving in to get your way,\u201d are guideposts for successful negotiation, a point confirmed by recent research.\u00a0 See, e.g.<\/em> https:\/\/law.temple.edu\/aer\/2020\/12\/03\/brain-lessons-negotiating-errors-when-the-adversarial-mindset-hurts-more-than-helps\/<\/a><\/p>\n

When it turns to the courtroom Persuasion Science<\/em> is at its best and to some most unsettling.\u00a0 Blumberg does not abide by all conventional reasoning \u2013 he follows the science and comes to a number of conclusions that might seem provocative if not scary.\u00a0 Consider this one:<\/p>\n

People are usually more convinced by rea\u00adsons they discovered themselves than by those found out by others. By enticing the jurors to fill in the missing infor\u00admation, they will reach the desired conclusions. If you tell them, they will resist; but when they arrive at their own con\u00adclusion, it sticks because they have persuaded themselves.<\/p>\n

Persuasion Science, <\/em>56.\u00a0 Imagine a closing argument where the advocate does not say \u201cthe evidence demands<\/em> a finding of\u2026\u201d but instead hands that to the jurors with a soft \u201ccould those be the result of carelessness\u2026?\u201d<\/p>\n

This lesson is part of a broader one about \u201creactance.\u201d\u00a0 The author explains this in detail, with a personal experience driving it home:<\/p>\n

Reactance is the resistance to something that is perceived as a threat to one\u2019s autonomy or freedom of choice. Words like \u201cmust,\u201d \u201cshould,\u201d and \u201cneed\u201d are known reactance triggers. I learned this lesson during a mock trial. I was going through the verdict form and told the jurors how the questions should be answered. I had noticed that a young woman juror was paying close attention. I thought that I must have been very persuasive. Shortly afterward, while I observed deliberations on a remote monitor, I was stunned when she said, \u201cCan you believe that douchebag plaintiff lawyer telling us what to do?\u201d<\/p>\n

Persuasion Science, <\/em>91.\u00a0 The book is replete with more lessons, some more familiar and\/or less threatening:<\/p>\n