Persuasive Edge, Second Edition PDF eBook

Authors: Richard J. Crawford, Charlotte A. Morris  ISBN-10: 1-933264-99-3 ISBN-13: 978-1-933264-99-8 Copyright Date Ed: April 1, 2011 Pages: 256 PDF eBook Purposeful communication will strengthen your ability to persuade. Drawing on the premise that persuasion must be purposeful, The Persuasive Edge lays out the case for making meaningful choices at each stage in trial preparation and at trial. The Persuasive Edge is a must for every trial lawyer, teacher and student of law or communication, and anyone else whose practice or profession depends on human persuasion. This straight-forward discussion combines the best academic conclusions from the psychology of human persuasion and decision-making with the practical knowledge acquired from litigation throughout the United States, to offer you a more purposeful and practical approach to improving your influence and advocacy. The authors’ extensive experience as trial consultants has given them the opportunity to test modern persuasion techniques and research by working inside jury trials and conducting interviews with thousands of real and mock jurors in a wide variety of civil and criminal cases and training opportunities. This wealth of experience and unique perspective will assist you in creating a persuasive strategy for all aspects of legal practice, but especially within the jury trial. This book is not an abstract discussion of communication and persuasion theory, but a reference work designed to offer you practical and concrete techniques for improving your persuasive communication skills. The authors begin by identifying communication choices that will help you create a persuasive strategy for any situation inside and outside of the courtroom. Next, they demonstrate how the key components of personal credibility allow you to build an honest relationship with the jury, and offer specific techniques for capturing juror attention and securing juror commitment from the very start of every trial. They devote three chapters to the approach, mechanics and strategies of effective jury selection, including good voir dire question design, sound strike strategies, and techniques for improving your efficacy when voir dire is limited. They also identify the essential elements of powerful and persuasive opening statements and offer extensive tips and techniques for all witness examinations, and excellent methods for presenting compelling closing arguments. This new edition offers updated and practical suggestions for the effective use of advanced technology to visually enhance your persuasive strategy for every jury trial, and provides rare and insightful advice about improving your persuasive effectiveness and influence with judges. Regardless of your specialty or years of experience, your advocacy will be enhanced by the deliberate communication choices identified and illustrated in this book. For everyone working, teaching or studying in the legal arena, this advanced guide to purposeful persuasion will change the way you communicate for the better. Table of Contents Chapter 1: Developing a Practical Approach to Persuasion Definitions and Parameters for This Book The Lawyer’s Continuous Persuasion Campaign Persuasion is Purposeful: Always Have a Communication Strategy and Clear Goals Seven Major Communication Choices 1. Arrangement or sequence choices 2. Select and edit all of your data 3. Make careful delivery choices 4. Word choice: a matter of priority 5. Choose the persuasion site 6. Match your appeal focus to the receiver 7. Decide what to disclose about yourself Using the Choice-Making Approach in Non-Jury Settings Getting witness cooperation before the deposition or trial Making choices related to office settings Persuading the judge Negotiating and bargaining The Jury Trial: The Beginning of Post-Trial Persuasion Chapter 2: Building an Honest Relationship with the Jury You Are the Central Persuasion Equation Credibility is a Matter of Substance and Style The Psychology of Evidence: Three Conclusions 1. Evidence is perceptual 2. The advocate shapes and affects the evidence 3. The advocate as a “witness” during trial How the Psychology-of-Evidence Conclusions Should Affect Communication Behavior at Trial Do Not Try to Hide from the Jury Three Credibility Factors Communicating Your Competence to the Jury 1. Preparation is most important 2. Carefully work out your opening lines 3. Use the legal objection to display confidence and competence 4. Move with purpose 5. Demonstrate your sense of purpose and direction Getting the Jury to Trust You 1. Admit mistakes to the jury 2. Identify the weaknesses in your own case 3. Use legal objection grounds to assert your integrity Getting the Jury to Like You 1. Find the right formula for self-disclosure 2. Use your humanness to reduce the psychological distance between you and the jury 3. Keep the balance between being combative and courteous Identify Focus Problems in Your Self-Image Objectively Look at Your Image Projections in Front of a Jury How to Begin Making Image-Projection “Corrections” Putting Persuasion and Credibility into Perspective Chapter 3: Simple Tools for Getting Jurors’ Attention The Form versus Substance Dilemma Holding Juror Attention is Totally Your Responsibility Communicate Your Commitment with Voice and Body Use Vocal Force to Carry Your Message Use Vocal Pitch to Hold Attention Rate Patterns as Persuasive Tools Integrate the Three Delivery Variables Use Courtroom Space to Your Advantage Persuasion through Nonverbal Communication 1. Appear at ease in the courtroom 2. Avoid any social interactions with your opponents 3. Be aware of the materials on your table 4. Avoid displaying any negative social habits 5. Be attentive to the judge’s ritualistic opening remarks Let the Message Dominate Gender Differences in Verbal and Nonverbal Behavior The Case against Using Written Notes Exceptions to the no written notes rule The danger of memorizing a written speech Break down your speech into a series of mini speeches Consider the use of mnemonic systems Another organizational method for recall Keeping Presentation Matters in Proper Perspective Chapter 4: Persuasion in Voir Dire The Seven Goals of Attorney-Conducted Voir Dire What Potential Jurors Expect The Approach to Attorney-Conducted Voir Dire Get to Know Your Jurors Preparing for Voir Dire Identify the Issues You Need to Discuss Case-specific topics Create a Profile of Desirable and Undesirable Juror Traits Crafting the Questions Not All Questions are Created Equal Open-ended Closed-ended Combination Scaled response Order Effect: Don’t Put the Cart before the Horse Word Choice: It’s Not Just What You Say, It’s How You Say It Tackling a Sensitive Topic Allow Jurors to Advance or Argue Your Case Avoid the Temptation to Argue Exceptions to the Rule: Seeking Commitment from Jurors on Critical Aspects of Your Case Practice Voir Dire Anticipating and Overcoming Objections Opening Remarks Getting Started Use Pace and Variety to Keep Things Interesting Know When to Quit What to Do with the Answers You Get Accentuate the positive Illuminate—then eliminate—the negative Making Cause Challenges Recording and Organizing the Information Know the Rules but Don’t Be Afraid to Try and Change Them Chapter 5: Developing a Strike Strategy Four Peremptory Challenge Traps 1. The single-factor trap 2. The demographic trap 3. The nonverbal instinct trap 4. The war story trap Every Case Requires Its Own Strategy Additional Peremptory Challenge Factors Jurors who mirror your client Self-concept Level of compassion See the forest and the trees Personality types or systems Questions Designed to Discover Personality Types Top Ten Questions for Civil and Criminal Cases Civil case questions Criminal case questions Now You Have a Jury: How to Continue the Campaign You Started in Voir Dire Opening statement Direct and cross-examination Closing argument Conclusion Chapter 6: What to Do When Attorney-Conducted Voir Dire is Strictly Limited or Not Allowed Judge-Conducted Voir Dire 1. Submit a pre-trial motion for attorney-conducted and/or individual sequestered voir dire 2. Ask to submit your own questions 3. Ask for the use of a supplemental juror questionnaire 4. Conduct a pre-trial investigation of jurors The Ten-Minute Voir Dire: What to Do When Your Time is Limited The Use of Supplemental Juror Questionnaires Make your request early and offer sound reasons for its use Keep it simple Timing is everything Questionnaire construction Making Use of What You Learn from SJQs Create a card file system Create a single-page summary Rate each prospective juror Follow-Up Questioning Forging a New Voir Dire Frontier Chapter 7: Securing Juror Commitment during Opening Statement Put a Premium on Opening Steer Clear of the Road Map “Trap” What are the Limits? Use Credibility Capital with Care Psychological Presentation of Evidence during Opening Statements Jurors Won’t Wait for the Evidence before Taking Sides Convince the Majority during Your Opening Ten Essential Elements of Effective Opening Statements 1. The power of narration 2. Perspective 3. Motive 4. Themes 5. Sequencing and word choice 6. Present tense speech 7. Directness 8. Specificity 9. Embrace your weaknesses 10. Set the standard How Much Should You Mention Your Opponent’s Case? Voir Dire and the Opening Statement as a Duet Beginning Your Opening Statement The first minute is prime time Avoid wasting prime time Reload your silver bullets for your concluding paragraph Preventing and Responding to Objections Deliver Several Statements as if You are a Witness Do Not Wait to Mention Damages How Long Should Your Opening Be? When Should You Compose the Opening Statement? Never Waive or Reserve Your Opening The Defense Can Have the Opening Statement Advantage Use the Best of What You Have and Who You Are Chapter 8: Advancing Your Case while Witnesses Are on the Stand Persuasion through Other People Tend to Your Witnesses Long before Trial Fourteen Things to Focus On: Preparing Witnesses for Direct Examination 1. Be honest about the scrutiny 2. Prepare your witnesses for proper eye contact 3. Let witnesses practice interacting with exhibits 4. Empower your witnesses to ask questions occasionally 5. Help your witnesses with posture and use of hands 6. Teach witnesses how to vary the pace of their testimony 7. Acknowledge the weaknesses in testimony 8. Watch out for negative mannerisms in your witnesses 9. Prepare for levels of denial or affirmation 10. Help the witness return to the emotions of the original moment 11. Help your witness use more effective language 12. Help witnesses avoid the “you were coached” trap 13. Always test your witnesses with a hypothetical cross-examination 14. Appearance Special Considerations for Expert Witnesses 1. Eliminate “shop talk” 2. Don’t hide the truth from experts 3. Look for teaching experience 4. The well-trod witness 5. Have an answer for the inevitable 6. Get right down to business Six Tasks to Complete during Direct Examination 1. Be sure the jury knows how much you like and believe your witnesses 2. Retain eye contact while asking questions 3. Shield your witnesses by leaving nothing for your opponent 4. Mix some cross-examination with your direct examination 5. Control the sequence and drama of your witness’ testimony 6. Carefully select your witness order Seek the Cooperation of a Hostile Witness before Attempting Cross-Examination Composing and Delivering Cross-Examination Questions Nine Cross-Examination Choices 1. Approach cross-examination as if it were a speech 2. Think of the witness as “irrelevant” during your examination 3. Hold the witness to one-syllable responses 4. Use your positive credibility as a cross-examination weapon 5. You may maintain an adversarial approach even with a “gentle” witness 6. At times, studiously avoid interrupting the witness 7. Let witnesses expose their own question-avoidance 8. Never give away your power and control 9. Adopt a four-step model for all major cross-examination challenges Other Stylistic Considerations for Cross-Examination Choose among a variety of leading question constructions Use some theatrics during delivery of a leading question Occasionally begin questioning while still seated Don’t Let the Jury Know When a Witness Throws You a Curve Cross-Examining Witnesses Who Evoke Sympathy Consider the consequences of asking no questions Lead such witnesses in an inquiring manner Try to avoid cross-examining hostile witnesses if you have not met with them before trial Special Considerations for Child Witnesses Become informed about child development and child psychology Do not abandon your witness examination principles Protect or impeach children before and after their testimony Use electronic recording technology Efforts to impeach a child may backfire When Criminal Defendants Should Testify Mingle Substance and Hard Work with the Process of Managing Witnesses Chapter 9: Maximizing Persuasion Potential during Closing Argument The Role of Closing Arguments How Closing Argument Differs from Opening Statement Consistency is Key Finish What You Started: The Connection between Opening Statement and Closing Argument Begin with strength Perspective Motives Narration Themes Embracing your weaknesses Twelve Do’s and Don’ts for Closing Argument 1. Keep the speech in clear focus 2. Draw clear conclusions in your closing 3. Bring witnesses back to “testify” 4. Be persuasive and poetic 5. Inoculate the jury against your opponent’s upcoming summation speech 6. Prepare your rebuttal speech in advance 7. Prepare the jury to make the difficult decisions 8. Let jurors know you were paying attention 9. Always refer to the jury instructions 10. Use analogies and metaphors with caution 11. Empower the jury 12. Conclude with directness, confidence, and eloquence The Persuasive Power of Passion Close with Personal Authenticity Chapter 10: The Power of Visual Persuasion Overarching Principles for Visual Persuasion Explore your options early Match the presentation to your purpose Practice still makes perfect Don’t stake everything on visual presentations Five Common Mistakes When Using Visual Aids 1. Failure to get feedback 2. Ineffective use of documents 3. Lack of preparation for the use of transcripts 4. Haphazard use of photographs 5. Too much or too little information on a timeline Opening Statement: A Prime Graphic Opportunity Using Graphic Aids with Witnesses Cross-Examination Techniques Using Graphics during Closing Argument Seven Additional Considerations for the Use of Visual Aids 1. Make sure the courtroom stage is ready 2. Find ways to involve the jury 3. Don’t pass pictures and charts among the jurors 4. Stop just short of the most grisly depictions 5. Keep the presentation moving 6. The strategic use of titles 7. Variety is the spice of life (and trial) In the Courtroom Everything in Moderation Chapter 11: Expanding Your Trial Strategy and Staging Techniques Consider a “New” Approach to Taking Most Depositions 1. Take care to mask your value judgments about the witness and the case 2. Create an atmosphere for problem-solving 3. Don’t let your strategy prevent you from going where the witness takes you 4. Listening is an active behavior, not passive 5. Use positive feedback to encourage greater participation Carefully Divide Duties with Co-Counsel Use Spectator Support Sharing Voir Dire with Your Client Five Linguistic Considerations for Trial 1. Don’t help to humanize your opponent 2. Package the fear of a loss in the language of certain victory 3. Make your opponents appear to lack confidence 4. Characterize your opponent’s case as a story 5. Take the “we versus they” stance Enlist the “Great American Myths” Persuasion and the Legal Objection Let the Jury Draw Some Final Inferences Experiments and Demonstrations in Court Develop Your Own Tactical Use of Passion Carry a Special Message for the Jury during Closing Considerations for “Mega-Trials” The Unlimited Boundaries of Jury Persuasion Chapter 12: Communicating More Effectively with the Judge Examine Your Goals There is No Magic Formula for Persuading Judges Judges are People Too Know the Judge’s Reputation Using Personal Knowledge about the Judge Strategically Arrange the Order of Motions Respect the Court’s Time Constraints Accept Bad Rulings Facing a Hostile Judge: A Two-Step Approach Public Communication Exchanges with the Court Chapter 13: Using Trial Consultants When Do You Really Need a Trial Consultant? Three Selection Considerations 1. Academic background 2. Experience and specialty 3. Magic potion claims Protecting the Confidentiality of a Consultant’s Work Common Trial Consulting Services 1. Small group research 2. Witness preparation 3. Jury selection preparation and assistance 4. Survey research 5. Post-trial juror interviews Be a Bit Skeptical about Research Findings Introduce Your Consultant to the Judge and Jurors Referring to an Opponent’s Trial Consultant What Do You Have a Right to Expect from a Trial Consultant?