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As logic is a powerful instrument of persuasion, so, too, is emotion. Since ancient times, harbored feelings such as passion, anger, pity, sympathy, happiness, and even indifference have played a significant role in decision-making by both judges and juries. The objective of emotion in argument is to awaken or arouse desired feelings or sentiments in the judge or jury, and induce them to render the preferred decision.

Derivative use of emotion can be effective to confirm a conclusion you believe the judge or jury currently harbors, either from the presentation of the case or from preconceived attitudes or beliefs. Consider this closing argument by the late Moe Levine, after he established the elements of proof relating to the tragic injuries of his client, who became a paraplegic.

“Ladies and gentlemen of the jury: Good afternoon. I note we saw each other from a short distance during lunch. It was a nice lunch, despite the sobering nature of this case. You may have observed during our lunch all of us used a knife and fork. But not my client. (Silence, and then in a quiet voice he spoke.) He ate like a dog.”

Levine then sat down. The verdict was for the plaintiff.

Direct use of emotion is the essence of exhortation, calling upon the empathy of the judge or jury to feel the emotion of the matter at hand as a means of convincing them to render the desired judgment or verdict. It relies on the belief that most people make decisions based on emotion, and then justify that decision with logic.

Here are several effective ways to arouse emotion:

Tell a story: One that embraces the theme can enhances the desired emotional response.

Use figurative analogy: This is another characteristic of emotion worthy of consideration, as exemplified by Moe Levine.

Consider schemes and tropes: The words you select are influential in stirring the emotions you seek to arouse. Schemes and tropes can be very effective in the art of persuasion. A scheme changes the traditional order of words for drama or effect (e.g., “wonderful, wonderful, a wonderful man was my dear husband, Henry”). A trope changes the significance of words (e.g., metaphors and similes).

Ask rhetorical questions: Leaving a question unanswered for the listener can spark a jury to feel the distress of the client — or anger, if that is the goal. “Look at him, ladies and gentlemen. Does he look like the type of person who could commit this heinous crime?” Here, counsel is imploring the jury to conclude “not guilty.”

Humanize the client: This can go a long way to obtaining emotional appeal and cultivating support for a case.

Don’t underestimate the understatement: In a criminal case, the prosecutor states: “I will not dwell on the slight speed the defendant drove the getaway car, when he says he was slightly inebriated. The facts were clear that defendant was driving the car at 90 mph, and that he was very inebriated.” This understatement effectively arouses anger in the jurors.

Be sincere: It is essential that you demonstrate the emotion you seek to arouse. Sincerity is demonstrated not only by chosen words, but also by tone of voice, body language, and presentation of photographs.

Appellate arguments

While opportunities for cultivating emotion in the appellate courts are not as robust as during trial, opportunities do exist. Public policy issues frequently play a major role in the development of the law, and these issues often have emotional undercurrents that can be stirred by adroit advocacy.

Moreover, every erroneously decided case on appeal is saturated with emotion over the injustice of the errors below.
However, be mindful not to treat the appellate court as the trial court. The former exists to address alleged errors of law and is not receptive to emotional tirades.

Finally, remember that judges and jurors have entrenched attitudes and beliefs that they invoke during the proceeding. So connecting on an emotional level requires an understanding of their frame of mind and whether the planned approach has the potential to be effective.

Although challenging, it may be prudent to present a particular emotional appeal that takes piece of mind into account. Even more challenging is the probability that not all members of a jury or appellate court panel have the same preconceived frame of mind. Therefore, it is wise to learn more about your listener.

Unfortunately, this is not always possible. Sometimes you must surmise, based on experience. Judges are public figures so you have access to their written opinions, making it easier to ascertain their thought processes and potential emotional responses. Jurors pose a greater challenge because they are strangers. Nevertheless, conducting focus groups or watching mock jurors deliberate can be very constructive in ascertaining how jurors will react.

Advocacy is an art, not a science. Understanding the fundamental elements of logic and emotion, and how to apply them in the art of persuasion, is a lifelong quest well worth pursuing. Like many aspects of trial practice, you learn not only by reading and studying, but also through experience by applying these concepts during actual presentations both at trial and on appeal.

Paul Mark Sandler, trial lawyer and author, can be reached at pms@shapirosher.com.

Paul Mark Sandler on Persuasion: Connecting with Your Listener

8.30.19|Insights

An installment from Paul Mark Sandler’s monthly column on trial advocacy for The Daily Record:

The most important component in the process of communication is the listener. Other components — such as you, the lawyer, or your carefully crafted argument — while important are not as important as the object of your persuasion, the listener.

Knowing, for example, how the judge or jury might process your argument, and decide in your favor, is a formidable challenge. Mastering this challenge is the foundation of successful advocacy.

Gaining insight into the way a listener thinks allows you to connect with the listener, and the listener to connect with you. Consider the distinguished career of the 19th-century English barrister James Scarlett. He is known for having more success than other barristers of his time. His secret was knowing how to blend his mind with the minds of the jurors: Their thoughts were his thoughts.

In Scarlett’s own memoir, his son related the following quote: “I have it on Lord Chelmsford’s authority that the Duke of Wellington said of my father: ‘When Scarlett is addressing a jury there are thirteen jurymen.’ This is both characteristic of the influence he exercised when addressing juries and of the Duke’s terse manner of expressing himself.” (Memoir Right Honourable James, First Lord Abinger Chief Baron of Her Majesty’s Court of Exchequer, Peter Campbell Scarlett, James Scarlett [1877.])

“I found from experience, as well as theory, that the most essential part of speaking is to make yourself understood. For this purpose it is absolutely necessary that the Court and jury should know as early as possible de qua re agitur. It was my habit, therefore, to state in the simplest form that the truth and the case would admit the proposition of which I maintained the affirmative and the defendant’s counsel the negative, and then, without reasoning upon them, the leading facts in support of my assertion. Thus it has often happened to me to open a case in five minutes, which would have occupied a speaker at the Bar of the present day from half an hour to three-quarters of an hour or more. Moreover, I made it a rule in general rather to understate than overstate facts I expected to prove. For whatever strikes the mind of a juror, as the result of his own observation and discovery, makes always the strongest impression upon him, and the case in which the proof falls much below the statement is supposed for that very reason not to be proved at all.”

For many years, psychologists and other experts have studied the process of decision-making and the formation of judgments. While there is no universal agreement, numerous explanations have emerged.

Daniel Kahneman, in “Thinking Fast and Slow,” focuses on two modes of thinking: one that operates automatically and another that involves “effortful mental activities.” Heuristics are automatic conclusions drawn often from experience. For example, two individuals are on trial for murder and one looks guilty to the jury. A juror says to herself: “Birds of a feather flock together. The second one must also be guilty.” As counsel, your task is to intuit this conclusion, and perhaps incorporate it sub-silencio by either correcting or supporting it, depending on your side of the case.

Some people react emotionally (“left-brain people”), while others are more rational in their decision-making process (“right-brain people”). Thus, you the advocate cannot make the mistake that all jurors will use the same process of decision-making. Shape the argument that fits your listeners.

Further, biases relate to attitudes and beliefs that may also influence a decision. Attitudes are predispositions that cause a person to think a particular way. They can be based on prior experience. For example, a negative experience in a hospital can create a predisposition of disbelief of a health care provider testifying in support of a hospital in a negligence case.
Beliefs are the degree of truth one assigns to something. Rarely does a listener come before you with a blank slate. The challenge is to identify attitudes and beliefs that might be supportive and to build upon them. For those that are unsupportive of your argument, you must work to erase — or reshape — them.

Understanding the nature of decision-making is one thing, but knowing how your judge, jury or arbitrator may decide the case is another.

When it comes to ascertaining a judge’s approach to your argument, read prior opinions relating to the issues in your case. Stop in the courtroom to observe, and ask other lawyers, former law clerks and around the legal community. Read comments, if available, on social media.

Learning as best you can about how the judge — or arbitrator — might view the case is helpful in that it will allow you to build upon their presumed outlook on the matter at hand. Consider an example where you are confronting a motion to dismiss a lawsuit. The judge is “on record expressing agitation when complaint exceeds 15 pages.” Your complaint is 32 pages. To attempt to dissolve any hostility, begin: “Your Honor, before I explain why you should not dismiss the complaint, I would like to apologize for filing such a lengthy complaint. There are 35 defendants in this case. I really had no choice. I hope the court appreciates my situation, and I thank you.” Hopefully, you establish goodwill and boost your ethos, the listener’s perception of your character, an essential ingredient in persuasion.

With juries, the task of ascertaining how the case will be decided is more difficult. Hence, consider a mock trial or focus group. With a jury consultant, mock jurors can be assembled to hear all or part of the case. Watching the mock jury decide can be enlightening. Discussing the decision with them afterward can also be revealing. The closer in thought process to the actual jury, the more beneficial the mock jury.

Often advocates reshape their arguments based on what is learned from the mock trial. For example, during a mock trial, counsel cross-examined the person portraying a plaintiff’s witness in a way that the team members thought was brilliant. But the mock jury felt counsel had treated the witness unfairly. The trial team revised its strategy for the real case and avoided what could have been a disaster.

Also, the benefits of a mock presentation before a retired judge should not be overlooked in non-jury cases. Even a mock presentation before an arbitrator not affiliated with the actual case has value. Listen carefully to the feedback and adjust accordingly.

Appellate arguments: Participating in moot court exercises in appellate cases has comparable benefits to the mock trial. Many years ago, when Justice Thurgood Marshall was solicitor general of the United States, he told me that moot court was essential to him in his appellate arguments. He stated that, during a moot court argument the evening before he argued Brown v. Board of Education, a law student at Howard University asked him a question that he could not immediately answer. But after “burning the midnight oil,” Marshall developed his response. The next day, he related to me, the Court asked him this exact question, and he answered with confidence and enthusiasm. Marshall told me to never forget the importance of the moot court.

Engage the listener: Once you know — as best you can — the strong and weak points of your case, having assessed the mindset of your listener, it is time to focus on your argument. Here are some important elements to consider and include in your effort to convince the listener that your view of the matter is correct and should be adopted.

Shape your argument to appeal to the listener. Keep in mind the concept fostered by James Scarlett of “blending your mind with the mind of the listener.”

Remember the importance of your ethos, the listener’s perception of your character.
Use inductive and deductive reasoning when applicable. Inductive reasoning examines particulars and reaches a general conclusion. Three meals at the corner restaurant were bad; therefore, all meals there are bad. Deductive reasoning examines a general conclusion to reach a specific one. All claims for defamation must be filed within one year of the alleged wrong. Plaintiff filed her case three years after the alleged defamation. Her case must be dismissed.
Consider your style. Use plain, easy-to-understand language, including schemes and tropes. A scheme is the rearrangement of words in a sentence for drama or effect. “A good man is Jim.” A trope occurs when you change the significance of words in a sentence. Metaphors and similes are considered tropes. Keep in mind the secret to Daniel Webster’s success: “By addressing the understanding of common men … I must use language perfectly intelligible to them. You will therefore find in my speeches to juries no hard words, no Latin phrases, no fieri facias, and that is the secret of my style.”
Concentrate on the arrangement of your presentation. Bear in mind the ideas of primacy, recency and frequency. You remember best what you hear first and last. The power of repetition brings rewards.
Use and show emotion as appropriate; do not overdo it. Consider the value of understatement.
When using demonstratives, assure that they can be seen clearly.
Immunize your argument as appropriate by suggesting what the opposition might argue, and refute it before it is proffered.
Give attention to your delivery — how you move in the courtroom. Facial expressions, eye contact, gestures and voice modulation are all important aspects of delivery.
Observe the listener and match your argument to his or her state of mind as you perceive it during the presentation. Then lead the listener to your conclusion.

In conclusion, rhetoric — choosing the most persuasive argument for the occasion — is an art, not a science. Devoting time to consider the mindset of the listener is the cornerstone of the art. The tools of engagement are not universal, but they arise from centuries ago and can be adapted to suit our postmodern times.

Paul Mark Sandler, trial lawyer and author, can be reached at pms@shapirosher.com

Paul Mark Sandler on Witness Deposition Prep

8.30.19|Insights

An installment from Paul Mark Sandler’s monthly column on trial advocacy for The Daily Record:

Success in trial often depends on deposition preparation. Here are some guidelines to stay within the bounds of ethics and propriety.

First, prepare yourself. Read the Rules of Civil Procedure, both state and federal, that relate to discovery, including depositions. Also read the MSBA’s Discovery Guidelines (Chapter 400, Md. Rules) and the Discovery Guidelines of the U.S. District Court (Appendix A, Md. Rules). Review the ethical rules relating to preparation of witnesses (Rules of Professional Conduct, Title 19).

Understand that the scope of the attorney-client privilege and work product doctrine is applicable to depositions. The attorney-client privilege does not apply to conferences with third-party witnesses, so be prepared for questions relating to the meetings you had preparing witnesses other than your client.

Be sure you know the theory, evidence and essentials to prove or defend your case, and know as much as possible about your witnesses before each meeting.

Second, prepare your client and witnesses. Begin by explaining that a deposition is a procedure where a witness is questioned by various lawyers who represent parties in a lawsuit about facts pertaining to issues in the case, or about information that is relevant to the subject matter involved in the action, whether it relates to the claim or the defense of the party seeking discovery or to the claim or defense of any other party.

Further, explain that these answers become deposition testimony and are recorded under an oath administered by the court reporter. Witnesses will be asked to affirm that their testimony is true under the penalties of perjury and it will become part of the deposition transcript.

A deposition allows lawyers to assess character and credibility and to learn the extent of a witness’s personal knowledge of facts relevant to the case, as well as the nature of what the testimony will be in the event a witness is called at trial.

Other purposes of the deposition include:

“Freezing” testimony, so that if witnesses change their testimony during trial they can be impeached;
Preserving testimony in the event a witness is unavailable for trial;
Neutralizing a potentially harmful witness;
Obtaining helpful information to support the case of the party who is taking the deposition; and
Evaluating strengths and weaknesses of a case for settlement.

It may also be helpful to explain the potential uses of a deposition. Testimony can be read to the judge or jury for any purpose, of a party to the lawsuit as distinguished from a nonparty witness. Portions can be read to the judge or jury subject to the rules of evidence, if a witness as distinguished from a party becomes unavailable or is beyond the jurisdiction of the court during the trial. Portions of a deposition can also be read to attack credibility by demonstrating that trial testimony differs from deposition testimony.

Tell your witnesses they have the right to — and should — read their deposition transcript before signing it. They may make corrections to their testimony; however, doing so allows opposing counsel to re-depose.

Also offer your witnesses the following pointers:

Dress appropriately. Counsel will be assessing credibility, character and demeanor.
Always tell the truth. Not only is there a moral and legal obligation to respond truthfully, but also it prevents opposing counsel from attacking witnesses’ credibility at trial.
Listen carefully to all questions. Ask for clarification if necessary. Tell witnesses that if a question is vague but they feel they can answer it, they should first state how they understand the question before giving an answer.
Pause and reflect before answering. This not only allows time for witnesses to gather their thoughts, but it also enables you to interpose an objection, if you so desire. Explain the two types of objections at deposition: form and substance. An objection to form is a technical one. An objection to substance is based upon what you believe is an improper question. Tell witnesses you will instruct them on how to proceed.
Respond to questions based on knowledge. Tell witnesses never to guess or speculate.
Do not accept characterizations or summaries unless they are accurate. Frequently, opposing counsel will attempt to summarize what has previously been stated, or the content of a document, and such summaries can be flawed with inaccuracies.
Answer all questions in a straightforward manner. Urge witnesses to avoid speeches and repetition of the facts contained in the question.
Listen carefully throughout the deposition. Explain that you, the lawyer, play the lead role during the deposition and that discussions during the proceeding are discouraged because they may convey disagreements, misunderstandings or questions to opposing counsel.
Do not respond to questions about documents unless familiar with the content of the entire document. Tell witnesses not to hesitate to ask that a document be shown to them if it would be of assistance in answering a question.
Maintain a calm business demeanor. Extensive off-the-record discussion and casual conversation should be avoided. Further, explain that discussing prior testimony during the deposition or a recess is prohibited unless the subject matter relates to whether the answer will waive a privilege, such as attorney-client privilege.

These brief remarks scratch the surface but, I hope, will spur you to study in depth the many aspects of depositions, including Q&A practice sessions, when appropriate, the deposition of expert witnesses and corporate designees — topics for another day.

Paul Mark Sandler, trial lawyer and author, can be reached at pms@shapirosher.com.

Classical Rhetoric and the Modern Trial Lawyer

6.22.18|Insights

Paul Mark Sandler on the benefits of classical rhetoric, for Litigation Magazine (Winter 2010).