Why Lawyers Are So Bad At Persuading

Don’t forget that how you present your winning argument can be just as important as being technically correct.

A few weeks ago, I wrote an article about the weirdness of the jury system. Here, I want to pick up where I left off and discuss some of the elements of persuasion, not just with juries, but with judges as well.

Litigators are persuaders, whether in legal briefs, or in front of juries, their main job is to convince someone that they are right. To do this, they can’t just be right. They have to be persuasive and right. That’s one of those things that they don’t really emphasize in law school. Although it’s important to know who actually owns Blackacre in a race-notice jurisdiction when one party fails to properly record the deed, it helps to know practical things too. But because almost all of our legal educations are spent just learning how to be right, and we are ranked and judged early on based on our ability to be right, lawyers forget about being persuasive. It’s like going to the gym and only working out one arm. Sally Hogshead, author of How to Fascinate (affiliate link) says, “You don’t learn how to be fascinating, you unlearn how to be boring.” I think the same is true of lawyers — they need to unlearn focusing exclusively on being right. And a lot of them are incredibly boring too.

The Curse of Knowledge

Sometimes our emphasis on being right actually hurts our persuasiveness. There’s a thing called the Curse of Knowledge. It refers to an experiment that was done involving people who were tapping tunes to famous songs while hearing the tune in their head. The listeners had no idea what song the tappers were tapping to, and had to guess the tune. The surprising thing was not that the listeners only guessed right about 3% of the time, but that the tappers thought that the listeners would guess right about 50% of the time. They thought that they were doing a pretty good job, but in fact, they were doing an abysmal job.

The same thing happens with lawyers who are too deep in their case to be able to effectively take themselves out of their minds and explain their point to someone who does not have the benefit of the tune of the thousands of pages of exhibits and pleadings in their heads like the lawyer does. I keep an article on legal writing written by a judge, and I share it with all of my new lawyer friends. In that article, the judge states:

Remember that judges and research attorneys are, for the most part, generalists. We may know a little about a lot of things, but we’re not steeped in the details of the case that you’ve been living with for the last six months.

Teach the Way Your Audience Learns

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In case you don’t know, I am a huge advocate for trial technology and doing neat things at trial. I like to use a lot of visuals at trial because I think most people are visual learners and I like to teach the way the audience learns. That being said, some of the best advice I can give is to not use trial technology all the time. Sure, I’m working on projects like figuring out how to import my clients’ radiology films into Photoshop and using Photoshop’s 3D printing feature to export 3D models of my clients’ actual bones from 2D films, but not every case calls for that. Not every case calls for a 3D animation of an accident scene reconstruction. Not every case calls for the full laser and pyrotechnics show, as cool as it may be. Sometimes, it can actually distract from the story. So part of being persuasive is learning not just the “how” of fancy presentations, but also the “when.” For example, I like to use foam boards for some of my demonstrative exhibits because I can have those up on an easel and cycle through document exhibits on the screen that are referenced or summarized in my charts. I’ll almost always use some form of complicated technology to create the exhibit digitally, but then use judgment on how flashy I want to get with presenting it.

Doing What You’re Not Supposed to — Appealing to Emotion

Most courts have some form of a jury instruction that says that jurors should not base their verdict on sympathy or emotion. Likewise, it is a bad strategy to begin your legal brief by explaining how devastating it would be for the client if the judge ruled against him. Yet, most persuading is done through emotion. Seth Godin, the author of several excellent books on marketing, has the following to say on his blog on the use of emotion:

An anonymous copyeditor working on my new book unilaterally changed each usage of “persuade” to “convince.” I had to change them all back. Marketers don’t convince. Engineers convince. Marketers persuade. Persuasion appeals to the emotions and to fear and to the imagination. Convincing requires a spreadsheet or some other rational device. It’s much easier to persuade someone if they’re already convinced, if they already know the facts. But it’s impossible to change someone’s mind merely by convincing them of your point. If you’re spending a lot of your time trying to convince people, it’s no wonder it’s not working.

Although I’m not entirely convinced (or persuaded) that those two words are not synonyms, I do agree that there is a stylistic difference to how we present our arguments. Using his terms, it’s not enough to convince, we need to persuade also. For example, you might present me with evidence that escargot is nutritious and that most people find it quite delicious, but that would not drive me even one inch closer to wanting to ever eat snails. On the other hand, if you present me with evidence that most people who were skeptical about escargot and decided to try it, actually liked it, I’m a little closer because now you have engaged my emotion of curiosity and helped me feel like I have something in common with the group of skeptics as opposed to just saying, “I’m right and here’s all the reasons why you are wrong.”

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There is nothing unfair or illegal about making a persuasive argument versus a convincing argument, but trying to evoke emotion is a very fine line. Learn to tread lightly.

Conclusion

I’ve seen a lot of people who were right succumb to someone who is more persuasive, and I’ve seen people who overestimate their charisma and succumb to the fact that they did not have the facts on their side. The important thing is to not forget that knowing is only half the battle. Don’t forget that how you present your winning argument can be just as important as being technically correct.


Jeff Bennion is Of Counsel at Estey & Bomberger LLP, a plaintiffs’ law firm specializing in mass torts and catastrophic injuries. Although he serves on the Executive Committee for the State Bar of California’s Law Practice Management and Technology section, the thoughts and opinions in this column are his own and are not made on behalf of the State Bar of California. Follow him on Twitter here or on Facebook here, or contact him by e-mail at jeff@trial.technology.

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