SECRET LEGAL WISDOM

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The Goals of The Advocate

 

In court your goals as a persuader are the same as any other case advocate: You want to inspire, influence and empower your judge or jury to decide the case in your favor.

 

In a sense you are playing quarterback in this role, dropping back to deliver the ball smartly up field to an uncovered receiver, or tucking it away in your fullback’s breadbasket so he can rumble three or four yards for the first down. You should see these trial decision-makers as teammates ready to execute whatever plays you call and churn up yardage toward the end zone. Your role is to call the right play for the situation and then drop back and deliver the ball.

 

Inspire the Decision Maker:  Judges and experienced lawyers have long known that jurors – and the rest of the human race for that matter – make decisions by combining logical facts with emotional factors to reach conclusions - just like Aristotle observed thousands of years ago. What may be surprising is the order in which these elements come together.

 

Most forensic psychologists understand that jurors make decisions based on emotion first, and then sift through the evidence for information that validates their conclusion logically. While this validation process is essential – jurors will abandon a purely emotional appeal that is not accompanied by corroborating, validating evidence – they will also cling to these early perceptions tenaciously if properly reinforced.

 

You should also know that if you make an emotional appeal but fail to back it up properly, a juror is likely to punish you for leading him or her astray. Such jurors become doubly hard to convince with even the most compelling argument, while often they will redirect their favor to your opponent.

 

Additionally, jurors can arrive at decisions using what psychologists call central cues – information processed which is central or integral to the case – or through more roundabout means, using peripheral cues. Peripheral cues are elements of information not logically related to the central issue. So, where central cues relate directly to the evidence in a case, circumstantial or conclusive, expert or eyewitness testimony for example, peripheral cues acting on a juror’s decision-making process are not directly related to those core components. They might include everything from how attractive the litigant appears to the juror, to how long-winded the questioning becomes around the noontime lunch hour.

 

Generally, when the arguments confuse the juror or become difficult to understand, central cue logic recedes and peripheral cue decision-making comes to the fore. Fatigue, distraction and intellectual disengagement can also cause jurors to abandon central cue decision-making. You should watch carefully for warning signs indicating that you’ve “lost” your listeners, even if it means throwing out your carefully constructed presentation in favor of something more … provocative. Many times less is more.

 

Influence the Decision Maker:  Take a minute to read the following quote.

 

“First, influence occurs when a source deliberately tries to change a receiver. Second, persuasion occurs when a source deliberately uses communication to change a receiver's attitude. Third, an attitude is a person's evaluation of an object of thought. … Any time a source deliberately attempts to change a receiver's thoughts, feelings, or behaviors, influence has occurred.”

  ---  Attitudes Drive Behavior: Prof. Steve Booth-Butterfield, W. Virginia University [4] 

 

Working from the professor’s definition, influence occurs when the advocate deliberately tries to change the thinking of judge and jury. The key determinant in that equation is the judge or jurors’ attitude. Since the Creator has endowed human beings with free will we won’t get far in life trying to force others to do what we want them to do.

 

Before we can influence others to think or believe or behave in a certain way, we have to work first on their underlying attitudes. Most often, people make the vast bulk of their decisions based on this structural framework.

 

Think for a moment of the major shift in attitudes among ordinary Americans on cigarette smoking for example. Once, as recently as the early nineties, the tobacco lobby was among the most powerful interest groups in this country, inspiring awe and fear among the ranks of elected officials. The political fortunes of many lawmakers over the years were won or lost on how they came down on big tobacco.

 

For decades, ordinary Americans smoked where and when they pleased – in offices and restaurants, at home and at school – without fear of the management asking them to tamp out their butts. People even used to smoke in movie theaters and airplanes. What happened? Attitudes changed. Why? Because study after study showed the harmful effects of smoking. Public health officials like the Surgeon General and others in the medical community declared open warfare on tobacco use. Anti-smoking activists took up the crusade, demanding the right to breathe smoke-free air. They pushed until it gave and over time, attitudes changed. 
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