Persuading Juries 2014 Washington County Bar Association Pete

Persuading Juries 2014 Washington County Bar Association Pete Orput

What is Persuasion? • Persuade: (Latin) persuadere-from per-thoroughly + • Suadere- to advise, urge.

Persuasion It is the process of guiding people toward the adoption of an idea, attitude or action by rational (though not always logical) means. It is a strategy of problem solving relying on appeals rather than force.

Buying a new car • What are you feeling when you walk into the dealer? • Excitement • Anxiety- don’t want to get ripped off. • Think you know what you want but are looking for guidance from sales rep. • Want some help making up your mind.

First encounter with sales rep. • What are you expecting? • Rep. should be: • Knowledgeable • Competent • Friendly • Low pressure

What happens to you when you feel pushed? • The harder the pitch, the more you want to leave. • Scared- of succumbing to the pitch. • You resist the sell • The harder they push, the more you resist. • Ultimately you don’t buy or if you do you have huge remorse and return the product.

What does buying a car have to do with trying cases to juries? • Everything!

You are dealing with REGULAR FOLKS. They don’t think like lawyers. They care about details so so long as those details fit with their assumptions/values. Like you going to buy a car, jurors are: excited to be part of a trial; anxious and scared because they want to do the right thing. Jurors want to be persuaded. They are either expecting to convict or acquit and they are looking to you for guidance and help in rationalizing their decision.

See? You are in sales! • For private attorneys, the pitch starts at the first meeting with the potential client. For us public servants, it begins in Voir Dire. • Always begin by listening to them. • Tell the truth and be candid- it won’t scare them away! • Soft sell or hard? How do you like it?

Principles of persuasion • These principles apply to juries or car buyers alike- we’re all just regular folks.

Principles of persuasion Robert Cialdini, in his book Influence: The Psychology of Persuasion, lists six important principles of effective persuasion:

Cialdini’s persuasion principles. Liking: people like those who like them. Reciprocity: people repay in kind. Social Proof: people follow the lead of those like them. Consistency: people align with their clear commitments. • Authority: people defer to experts. • Scarcity: people want more of what they can have less of.

VALUES • Jurors decide cases based upon their values! • Focus on those common, shared values that all jurors have. • Those values become your theme throughout the trial. Emphasize them throughoutdirect, cross, arguments, and the case appears simple, consistent and reinforcing for the jury.

Values that become your theme at trial: • • “easy money” “power and control” “family loyalty” “Greed” “predator v prey”- bully against the weak. “jealousy and hatred”. All jurors can relate to those values.

Persuading your jury • How are you coming across? (people like those who like them). Affect: Easy going? Serious? Concerned? • Your credibility: Confident? Prepared? Candid? The more credible, the more persuasive. If they trust you they are far more inclined to buy from you.

Message- how to get them to change their initial perceptions? • Emphasize the facts and relate those facts to their values.

Example: Murder case where victim is a crack whore with a 30 page criminal history and a diagnosis of AIDS. She was found murdered in an alley by her trick. On December 5, 2006, Dr. Andrew Baker stood over the tiny emaciated, frozen body of Alicia Jones as she lay on the steel table before him. The rigor mortis had frozen her body into a contorted bend. She was wearing sweatpants with the pockets turned out. Her hands were locked to her sides. She had a gaping wound which opened her throat.

The doctor looked and wondered why someone would slit the throat of this poor soul open. The woman lying on that steel table was Alicia Jones and she was only 29 years old. She was a slight woman- she was only 5’ 4” and weighed only 122 lbs. She also had the deadly misfortune of knowing this man- the defendant right here…. What did we do here? We emphasized the facts that sell our case. We do it through emphasizing values. What are those values in our opening statement? What about defending that case? What values can we emphasize?

Let’s return to Cialdini’s SIX principles of persuasion and apply them to the courtroom. Liking: People are easily persuaded by other people that they like. How do we, in a very short time, show the jury how likeable we are? Appearance when they come in. Voice and questioning. Choose your tone and words carefully. Your role- do you fit the stereotype that they expect after years of TV lawyer shows? Don’t overdo it!

Reciprocity • People tend to return favors. • In our case, a favor or concession to the other side, in the jury’s presence, may be looked on favorably by them.

Commitment and consistency • If people commit, verbally, to an idea or goal, they are more likely to honor that commitment. • Get those commitments from them in voir dire then remind them of the commitments they gave in your summation. • “Earlier in this trial you all promised to do the right thing and that’s all I’m asking you to do now…”

Social Proof • People will do things that they see other people are doing. • In our case, pick a juror who appears sympathetic to your side and try your case to them. They will get others to follow in the deliberation room.

Authority • People will tend to obey authority figures, even if they are asked to perform objectionable acts. (like finding a person charged with rape “not guilty”. • Maintain your position of authority by your demeanor in the courtroom, your questioning of witnesses and your interactions with the bench.

Scarcity • Perceived scarcity will generate demand. • Here, remind the jurors that this is it!- This is the only opportunity to get some justice and it’s now or never.

Jury trials from a Sales perspective • Voir dire. The approach: Critical opportunity to demonstrate likeableness, credibility and sincerity. • Begin relating to them by introducing the values that you will be emphasizing throughout your case.

Opening statement • Your formal sales pitch. • Make it brief and concise. • Be honest and let them know about the defects up front. • How would you feel if the sales rep. approached you and read from a marketing brochure?

Opening, continued • Values, values! The theme of your case is always pointing toward those values that we all have. That’s what makes the jury care about your case and excited to participate in it. Your choice of words can make even the most boring case interesting and worthy of attention. Remember, if you don’t care about the case, neither will they.

A few DON’TS in opening statements: Skip the “May it please the court, counsel, ladies and gentlemen of the jury…” You aren’t introducing a prize fight! Besides, I don’t give a damn if my opening pleases either the court or my opponent. Skip the fawning thank you. “Before I begin, I’d just like to tell you folks how grateful we are that you took time out of your busy lives to serve on this jury…. ”. That groveling gets you nowhere and you just wasted an opportunity to hook them right in the beginning. .

For prosecutors, please skip the worthy centurion stuff: “I’m the prosecutor and it is my duty to present the evidence in this difficult case. Same with the defense- “It is my duty to protect Mr. Jones’ rights so you may hear me making objections in this case…. ” No talk about an opening statement being a roadmap and the evidence will show…you are wasting a valuable opportunity to just tell them the story- they don’t need a damned map to get to the verdict! Never apologize! “I’m sorry you’ve had to sit through voir dire for several days while I selected you…Are you responsible for them sitting around watching jello harden for 3 days?

At trial • Careful with the objections- jurors dislike them a lot. • The worst reason to object is because you can. • Only object to protect a witness from an unfair attack (jurors expect it) or to preserve your appellate rights. • Be sparing with your objections- jurors want to hear and evaluate all of it.

Direct and cross • Be careful about how you handle witnesses. Jurors often identify with witnesses and will punish you if they think you are a bully. • Rehashing the direct in your cross only augers in what the witness already said. If you don’t have any questions, then don’t ask trivial ones. • Pick your target for cross! Did this witness really hurt your case? Remember your credibility with the jury?

Closing the sale • Think of final argument as you coming to the jury with the contract and pen. You’ve been selling this product from the beginning, now all you gotta do is close the sale and get them to sign. Remind them of all the reasons they want what you’re selling. No need to hide the defects, bring them out and discard them with all the positives.

Final argument • Jurors want to convict/acquit because you have made them comfortable in doing so by relating the values of your case to theirs. • Your job in final argument is to give those jurors comfort and confidence. Your confidence gives them confidence.

Aristotle: “Rhetoric is the art of discovering, in a particular case, the available means of persuasion. ” Use motivating words. Say “Think about…” and they will. Words like “today”, “now” “right” are, subliminal experts tell us, powerful. E. g. , say, “By now…” and they’ll buy now! Repetition is also a powerful tool. Eg. “. . and he took that pistol, and he loaded each of those six bullets into it and he aimed that pistol at her head and he pulled back the trigger… Using the word “guilty” in pointing out each fact proved. Rhetoric

Comparison/contrast • “The defendant has spent a good deal of time trying to run away from the evidence, and points this way and that but folks, the evidence stays right here in this courtroom and points at the defendant. ” • Metaphors: implied comparison using figurative words. “ground zero for his explosive rage was Susie Jones”

Effect • The right choice of words can be very powerful. Perhaps equally powerful is your delivery. E. g. , watch Gregory Peck in the film To Kill a mockingbird. It’s not so much the words as it is the passion and conviction. • Caution: overdoing it will send the jury running to the exit!

A last bit of advice comes from a trial lawyer who was a great success, in and out of the courtroom.

What ever you are- be a good one! Thank you – Peter Orput