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