Pre-Suasion: Applied to Trial Practice

By Pat McArdle

All trial lawyers seek to tell true stories, every day. Trying to sway an adjuster. Explaining the law to a red-faced judge. Comforting a broken family. All these moments of truth make up our lives.

But as we go, are we doing everything we can to win over the people who can help restore our clients? Without a long life of trial and error, how would we know?

Young or old, we must look for what works when telling our clients’ true stories. With chances for trial rare for young lawyers, the search for knowledge to bridge the trial gap is key. Because we only have one life to live and limited time, reading research is a needed tool to find the best path. No matter how many mock trials, CLEs, or big trials you have had, social science research is the only way to reach beyond hunches and beliefs.¹ Research is the only way to answer whether your trial experiences are the exception, or the rule.

The book Pre-Suasion: A Revolutionary Way to Influence and Persuade gathers the newest research.² Its focus is on controlling attention in an ethical way. Because the book champions truthful communication, this article explores its ideas apply to practice.

The First Words: Revealing Hard Truths To Establish Trust

If Gerry Spence could only leave one word to teach lawyers, my guess is it would be “vulnerability.” In his words, “The most powerful person in the courtroom is the vulnerable person, the lawyer who is aware of his feelings and can share them honestly with the jurors.”³

But some great lawyers think revealing weakness, especially bad facts, guts zealous advocacy. If you bring out the bad fact, these folks would say, you have “sponsored” that fact and made it worse for your case.⁴

Pre-Suasion touches on the on-point research. The research available suggests revealing hard truths works. Simply put, “a communicator who references a weakness early on is immediately seen as more honest.”⁵ Researchers tested this effect with lawyers not named Spence.⁶ Disclosure moves jurors into their corner, too. It leads jurors to trust.⁷ And it moves jurors to accept these hard truths, while making the next point far stronger.⁸

So why the divided view between good trial lawyers? In my view, it is whether the lawyer sees disclosure as a tactic, or as the truth. When an opposing advocate pointed to this disclosure as a tactic, then the credibility boost vanished.⁹ As it should. The reason is obvious: no one trusts someone using a ‘tactic.’

So, if you have it in you, don’t treat this as a tactic. Instead, be a truth teller. Fight back against any insinuation that your words are a game. They are not. They are essential to serve an injured person and tell their true story.

When can we apply this idea? It applies throughout the case. Let’s say you have a motion hearing coming up, which you might lose on the law. No matter the outcome, you can still win the credibility battle. Disclose a bad case, and reframe it as a strength. Build your reputation for candor and full disclosure. Your chances before the court will improve on the close issues that matter down the road. Every time the bad guys fail to disclose, punish them.

After pre-trial practice concludes, voir dire and opening statement are the times to disclose hard issues. It is no mistake that Gerry Spence’s step one for voir dire is “Identifying the issues we’re afraid of.”¹⁰ I’ve heard other great lawyers, such as Sean Domnick, suggest the same starting point when approaching voir dire.¹¹ Voir dire is the only time at trial before the defense speaks. Use this time to take the high ground, reveal the hardest issues in your case, and become the most trusted person in the room. The same goes for opening statement.

1. Owning the Counterargument

Seeing flaws and telling folks about them in a raw form is the beginning of telling the truth, not the end. The research shows that framing hard truths as strengths works best.¹² As Mark Lanier has said in the invaluable book Anatomy of a Personal Injury Lawsuit, 4th ed. (edited by FJA’s own John Romano), “the magic of advocacy, and the true art of creating and staging a story, comes from presenting [negative facts] in such a fashion that you transform them into positives that you, and most importantly, the jury, would consider your [positive facts].”¹³

This is critical due to the power of counterargument in persuasion.     “[I]n contests of persuasion, counterarguments are typically more powerful than arguments.”¹⁴ The best counterarguments work “by showing the rival communicator to be an untrustworthy source of information, generally.”¹⁵ This suggests two lessons. First, it is important to avoid becoming an untrustworthy source of information. Second, it is useful to show your opponent and adverse witnesses are untrustworthy sources of information. Luckily, that’s the reality in most situations.

This focus on counterargument applies in all speech, from negotiation through trial. For trial lawyers, one should rely on counterargument in every story. Voir dire, opening statement, direct, and redirect can all preempt counterargument, while punching back at the other side’s case.

III. Opening Your Case: The Defendants, Front and Center

There is a strong instinct to start your case with your focus: your clients and how they are harmed. That is natural, because everything we do as trial lawyers focuses on our clients and their best interests. But focus on the client first is almost always a mistake.

Why? Because what is in focus is seen as a cause.¹⁶ If you pair your clients with the damages they endured, the listener will fill in the gaps with reasons for why this happened. Without the true story of the defendants’ harmful conduct front and center, the listener can only imagine (1) ways the client caused the injuries to themselves, or (2) ways that bad things happen to good people. After forming such an opinion, the jury will seek confirmation for that view.

Instead, trial lawyers should attack defendants and link them to the injuries first.¹⁷ Data from hundreds of mock trials confirms this fact.¹⁸ Doing so pins the defendant as the cause of the harms your client suffered, and stops attribution bias from pushing blame on the blameless.¹⁹

The defendant should not just be front and center in the way you tell the story. The defendant should be front and center visually. For instance, there is strong evidence that when viewers see a video confession in a criminal trial with the suspected person’s face on video, the viewers will find that person likely caused the crime, even when the statement is coerced. Why? The camera angle.²⁰ The bias disappears by changing the camera angle to put the suspect and questioner in equal focus.²¹ The bias reverses if the camera focused on the interrogator, making it more likely viewers see the interrogator as coercing the confession.²²

This effect has implications for a civil trial. Strong admissions from the defendants on a video deposition have real power. Put the defendant up front and center admitting critical concessions as soon as possible in trial, and jurors will see that testimony as a powerful sign the defendants caused the harm.

1. Keeping it Simple

After four years of college and three years of law school, even young lawyers know a lot. At a minimum, they can make the forced march through a 19th century case on personal jurisdiction. (They might do so with some resentment, but they can do so.)

But half of American adults cannot read text written at the 8th grade level.²³ So for at least half of jurors, stories with needless complexity cannot work. Even for students at Ivy League schools, research suggests writing with needless complexity makes you appear less intelligent.²⁴

This is because people like simplicity. Simple stories raise neuronal activity in the muscles that make us smile.²⁵  And difficult stories produce dislike in the brain.²⁶

The temptation for young lawyers, like other young professionals, is to use big words to fill in for fears related to lack of experience. While the temptation to say ‘loquacious’ instead of ‘wordy’ is high, this strategy will backfire.

As a result, when telling any story in any context, tell it as simply as possible. Ask simple questions. Help your witnesses give simple, true answers.

If you doubt you can simplify complex things like medical terms, take a look at Thing Explainer: Complicated Stuff in Simple Words.²⁷ The book explains how cellular biology, rocket ships, and even the U.S. Constitution work with only the 1,000 most used words in English. A laugh-out-loud read, it proves nothing is too complicated to break down into the basics.

Online tools exist to simplify writing everything from motions to deposition questions. The Hemingway Editor,²⁸ The XKCD Simple Writer,²⁹ and THSRS³⁰ all provide free online tools to help simplify.

In short: if you tell a simpler story than your opponent does, your audience will like you more. If your audience likes you more, you are more likely to get what you want.

1. Closing: Calls to Action

Be vulnerable, preempt counterarguments, counterpunch, attack the defendant first, simplify. Pre-Suasion and the research it collects support these tenets of trial persuasion.

The final principle I’d like to touch on is linking. For any action, we “should find a concept already closely associated strongly and positively with the action . . . and bring that concept to mind” just before calling our audience to action.³¹

We can build links through if/then statements. If/then statements preload action by creating clear links in the mind between a trigger and a response.³² This tracks David Ball’s advice about how to address the jury in closing argument. He advocates telling an audience ‘if someone in the jury room says ABC, tell them XYZ.’³³ That approach fits this linking model.

In this spirit, when you put down this article, open up Amazon and buy yourself a copy of Pre-Suasion. It should spark new ways of thinking about your trial practice.

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¹For a great book on how expert intuition works and how it fails, see Daniel Kahneman, Thinking, Fast and Slow (2011).

²Robert Cialdini, Pre-Suasion: A Revolutionary Way to Influence and Persuade (2016) (hereafter Pre-Suasion).

³ Gerry Spence, Win Your Case: How to Present, Persuade, and Prevail–Every Place, Every Time, 27 (2007) (hereafter Win Your Case).

⁴  See Kathryn M. Stanchi, Playing With Fire: The Science of Confronting Adverse Material in Legal Advocacy, 60 Rutgers L. Rev. 383 (Winter 2008) (collecting sources advocating sponsorship theory) (hereafter Playing with Fire).

⁵ Pre-Suasion at 165.

⁶ Pre-Suasion at 375 (citing Playing with Fire; Lara Dolnik, Trevor I. Case, and Kipling D. Williams, Stealing Thunder as a Courtroom Tactic Revisited: Processes and Boundaries, 27 Law and Human Behavior 267 (2003); and Kipling D. Williams, Martin J. Bourgeois and Robert T. Croyle,
The Effects of Stealing Thunder in Criminal and Civil Trials, 17 Law and Human Behavior 597 (Dec. 1993)).

⁷ Pre-Suasion at 165.

⁸ Id. at 165-166.

⁹ Playing with Fire at 421.

¹⁰ Win Your Case at 114.

¹¹ I heard this at FJA’s 2016 Al J. Cone Trial Advocacy Institute, which I highly recommend for advocates who want to boost their trial skills with great company.

¹² Playing with Fire at 429 (recommending disclosure only when a rebuttal is possible).

¹³ Mark Lanier and Tom Vesper, The Magic of Advocacy, in Anatomy of a Personal Injury Lawsuit 902 (John Romano ed. 4th ed. 2015).

¹⁴ Pre-Suasion at 92.

¹⁵ Id.

¹⁶ Id. at 15.

¹⁷ Elaine McArdle, Plaintiffs Should Always Start By Attacking the Defendant, Lawyers Weekly USA (Oct. 1999) (available at http://www.alabamatortlaw.com/files/lw_10_18_99.pdf).

¹⁸ Id.

¹⁹ Id.

²⁰ Pre-Suasion at 63-64.

²¹ Id.

²² Id.

²³ Annie Holmquist, Half of Adults Can’t Read a Book at an 8th Grade Level, Better Ed. (Mar. 24 2016) (available at http://www.better-ed.org/blog/half-adults-cant-read-book-8th-grade-level).

Daniel M. Oppenheimer, Consequences of Erudite Vernacular Utilized Irrespective of Necessity: Problems with Using Long Words Needlessly, 20 Appl. Cogn. Psychol. 139 (2006).

²⁴ Pre-Suasion at 112.

²⁵  Id.

²⁶ Randall Munroe, Thing Explainer: Complicated Stuff in Simple Words (2015).

²⁷ This tool is found at http://www.hemingwayapp.com.

²⁸ This tool is found at https://xkcd.com/simplewriter.

²⁹ This tool is found at http://www.ironicsans.com/thsrs.

³⁰  Pre-Suasion at 136.

³¹ Id. at 138.

³² David Ball, David Ball on Damages (3d ed. 2013). and Persuade (p. 63-64).Simon & Schuster. Kindle Edition.

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Pat McArdle is a trial lawyer for Grossman Roth and Partridge, as part of Grossman Roth Yaffa Cohen, P.A. He received his J.D. with highest honors from Stetson University College of Law. He is a current member of the FJA’s Young Lawyer Section Board of Directors. His experience includes advocating for people who have suffered from amputations, blindness, brain injury, misdiagnosed cancer, spinal-cord injury, and wrongful death.