The Art of Persuasion: The Good, the Bad and the Ugly

Charles Kramer, The Levison Group

Attorneys are advocates. Whether a tax lawyer, real estate maven, contract specialist or personal injury litigator, each attorney is a salesman of ideas, positions, and concepts. Our livelihoods turn on our ability to successfully convince others to adopt provisions and positions. Yet, few if any law schools teach classes in the art of persuasion, and few if any continuing legal education courses or seminars address the subject. Undoubtedly, this seeming incongruity arises, at least in part, from a view that cases should be won and contracts should be structured based on the best idea or the correct analysis rising to the top, and not because of one party’s better use of word structure, color matching, or other persuasiveness tools. Such a world view is naïve.

Whether or not an advocate has studied successful sales techniques or systems of argument, a negotiation, motion hearing, or trial will be effected by each participating attorney’s legal argument style and the subtle mannerisms and word choices that effect the impact his or her words have on the target audience. Failing to recognize this fact, and failing to take necessary steps to hone these skills, is as much a failure as turning your back on computer research or the latest case on trademark law.

Convinced? So far so good. Don’t get too happy. This was just step one.

Once an attorney embraces the concept of increasing his or her tools of persuasion, he or she must then confront the good, the bad and the ugly. The “good” is that there are tools, skills and approaches which can be identified, honed, used and improved—and which can be learned. The “bad” is that a few key tools of persuasion are genetic, with little change possible. The “ugly” is that ugliness , or more accurately attractiveness, matters.

So, how do we maximize those tools we can learn or with which we have been blessed, and minimize those negative factors we can’t really change?

The tools that a person is either born with, or not, include the shape of the face, the space between the eyes, the size of a forehead, the shape of a chin and the breadth of a smile. These factors are outside of our control absent plastic surgery or other draconian measures. Yet, which of these features gives an advantage, depends on the situation. Rounder faces, larger more widely spaced eyes, subconsciously cause identification with young children. Such features have been shown to cause a listener to want to protect the speaker, but to be less trusting of their experience. Thus, a person with these characteristics who is asking for a simple, direct, result that will have protective overtones will have the advantage. The same person will be at a disadvantage, however, if trying to convince someone to follow him or her on a complex, risky path, or if asking an audience to trust in his or her skill or experience

The learnable tools are generally broken down into seven identified tools. Each of these can be honed, integrated into everyday speech, and consciously adopted by virtually everyone – as long as it doesn’t become clear that you are using them. Ironically, the first learnable tool is to limit rhetoric and perceived argument. Studies show that listeners who perceive a presentation as argument or rhetoric adopt a judgmental, cynical, “go ahead and convince me” outlook from the get go, which makes them harder to convince. Thus, if a judge or jury recognizes that you are intentionally trying to use argument enhancers, the adoption of the tools will have a negative impact, although they otherwise will yield strong positive upturns. The next tool is simplicity. Perhaps obviously, the simpler the argument sounds, the easier it is to follow and the more convincing it becomes. The idea that the simplest argument is the best argument, has been borne out repeatedly. The third tool is the use of incongruity or surprise within an argument. A surprising turn, which nonetheless is supported by all that came before, causes a mental double-take, which increases the impact of the point and causes it to remain resonant in the brain. Fourth, appealing to the listener’s perceived self interest also helps. Phrasing arguments in a manner that emphasizes the benefit to the listener can work wonders. For example, when arguing for that position within your firm, don’t dwell on your credentials in the abstract or why you want the job, but rather point out why putting you in the position will help the firm and, even more directly, the interviewer. Two other, related, tools are empathy and submission. Showing the listener that you have empathy for them or their position, and that you are putting their needs and desires above your own, has also been shown to advance your cause. Whenever possible, sit lower than the decision makers, and lean in towards them, ever so slightly, when talking, putting the decision maker first. Adopting tactical empathy or “submission,” however, does not mean weakness. Confidence cannot be overrated. When a listener is asked to make a decision he has never considered before, he is much more comfortable following someone who appears sure in their position. When she is asked to change a position she has had for a while, strong conviction that a new path is the correct one makes the change easier. Strength and conviction, while demonstrating an understanding of the listener’s needs and advocating a position structured to be for the listener’s self interested benefit, is the perfect combination.

Finally, there is attractiveness. To some degree this is genetic, but it is also a strategic possibility. The most important thing is to remember to dress appropriately. People want to be liked by people they feel they like. If an initial physical appearance makes the person you are addressing want be your friend, they will want you to like them, and will want to share your ideas. Natural looks affect this category, but are not the last word. Dressing and acting appropriately can go a long way as well. There is a thin line, however, and some skill is required in identifying what is, in fact, appropriate. A blue collar worker may want to socialize with the three-piece-suiter, in which case dressing nicer than the decision maker is appropriate. However, a different blue collar worker may react negatively to someone he labels as “thinking he’s better than me,” and will relate better to someone dressed the same as, or less than, he.

Of course, if remembering all of these tools and then applying them appears too difficult, there is another path. You can do what my girl friend does — simply never be wrong.

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Under Analysis is a nationally syndicated column of the Levison Group. Charles Kramer is a principal of the St. Louis, Missouri law firm Riezman Berger PC. Comments or criticisms about this column may be sent to the Levison Group c/o this newspaper or to the Levison Group at comments@levisongroup.com.
© 2015 Under Analysis L.L.C.