Persuasive Litigator

Show, Don't Just Tell: Part 5, Caution (Persuasion Strategies Visual Persuasion Study)

By Dr. Ken Broda-Bahm -

 
As we get to the final post in this series, astute readers will have no doubt noticed one claim that we haven't made:  namely, that graphics will win your case.  By themselves, they won't.  That is what we found in our experiment focusing on the reactions of 1,375 mock jurors.  When we compared five different approaches to graphics (no graphics, flip charts, static graphics, animations, and continuous graphics use), and compared the reported case leaning, and verdicts on liability and causation, we found no one method presented a statistically significant advantage over the others. 

I'll admit, even for a dispassionate researcher, this was a  bit of a dissapointment.  As we designed and prepared the study, we had allowed ourselves to dream,  "Wouldn't it be great if, keeping the script constant, we could find the difference between winning and losing in graphics alone?"  Alas, not in this case.  Perhaps that is a necessary dose of reality.  The central caution we leave you with is you won't win your case because you use graphics.  Good visuals do provide a definite edge:  they improve comprehension, allow you to compare more favorably to the other side, and help to make the key points more memorable.  By themselves, good graphics won't turn the case in your direction.  In this final post, we take a sober look at this final caution and provide some parting advice on focusing your visual persuasion in litigation on what it does best.

Show, Don't Just Tell: Part 1, Continuity (Persuasion Strategies Visual Persuasion Study)

By Dr. Ken Broda-Bahm - 
We all remember "show and tell," and at least back then we understood intuitively that if we tried to just tell, without showing, we couldn't expect much attention from the class.  The same applies in litigation, and in a way you might not expect.  This post is the first in a five-part series, reporting for the first time on the results of our own large scale (1,375 mock jurors) original research study focusing on the effectiveness of visual persuasion in a litigation context.  These results have not been published anywhere, until now.  The conclusions I'll be sharing in the next five posts do not focus on the obvious point that it is helpful to use graphics when talking to juries (we all pretty much knew that already).  Instead, my focus is on the best ways to use graphics, contrasting five different approaches, as well as on the specific effects that these approaches have on comprehension and the credibility assigned to different arguments. 

An important part of the story is the path that we took in the research.  Midway through the project, we learned something very important:  the occasional use of graphics is not enough.  We added a fifth condition to the study and found that to get the full benefits of visual persuasion, attorneys should be using a continuous approach, giving the jury something to look at (other than you) at all times.  Instead of following the practice of most attorneys in only using the screen periodically to show a document or image when a particular need presents itself, effective attorneys use graphic immersion:  an approach relying on continuous imagery to reinforce all parts of your message.  This approach, reflected in the best uses of PowerPoint, turns out to be most effective of all the graphic modes we tested. 

Persuade Using Both Alpha and Omega Strategies

By: Dr. Ken Broda-Bahm -

 

Never heard of “Alpha” and “Omega” strategies for persuasion?  Until recently, neither had I.  But after reading the research, it has changed my way of looking at persuasion.  The terms are based on something called the "approach-avoidance" model (Knowles & Linn, 2004), suggesting that to an audience, every position you might advocate has attributes that attract ("approach"), and attributes that repel ("avoidance").  Persuasion is accomplished, naturally enough, by making the approach stronger than the avoidance.  Now, you might think, "that is obvious -- of course audiences see a pro and a con," but the real takeaway for advocates is the reminder that you need to speak to both sides of the equation.  Intuitively, we might expect that we make a persuasive case in court by assembling all of the evidence, arguments, and other appeals that show why we are right and they are wrong.  But that all speaks to the benefits of our position -- the approach forces.  Those are the "Alpha" strategies that give a judge or jury an incentive (greater credibility or merit) for siding with us.  But what about the avoidance forces, the forces that cause an audience to resist our message?  If we aren't also using the "Omega" strategies to decrease that resistance, then we may just be building a convincing case that our audience rejects nonetheless for their own reasons. 

In this post, I'll be referring back to the opening statements in the second corruption trial of former Illinois Governor, Rod Blagojevich, to illustrate the difference between Alpha and Omega strategies, and to underscore the message that complete persuasion needs to employ both.

Your Opening: Tell It Like a Story, but Tailor It Like a Strategy

By: Dr. Ken Broda-Bahm -

 
It is now a truism that effective opening statements tell a story.  Now that it is, once again, Blagojevic trial season in Chicago, prosecutors are telling a story of a desperate politician’s attempt to wring personal fortune out of political opportunity, as the defense waits to tell a competing story of an overzealous prosecutor’s efforts to paint simple ineptitude as high crimes.  For litigators, it remains true that the narrative structure is, to borrow and clean up a phrase, “freakin' golden,” but at the same time, the advice needs to go beyond, “tell a story.”

It can seem like simple advice.  After all, we know stories in our daily lives, and we know that they all have a setting, characters, conflict, sequence, and a lesson at the end.  But the simplicity of the advice to frame your case as a narrative can be deceptive.  There are a number of critical strategic choices that go into the development of a story to guide your opening and your trial order.

Go Ahead and Talk with Your Hands, But Know What You're Saying

By: Dr. Ken Broda-Bahm -

 

For an upcoming opening statement or closing argument, your gestures are probably the last thing on your mind...until you actually get up to speak.  Then, the commentator in your brain might be asking, "why am I gripping the sides of this lectern?" or "Is there a way I can make myself stop these meaningless chopping motions?"  In this post, I want to answer the speaker's age-old question, "but what do I do with my hands?" by focusing on some recent studies on the communicative role of gestures, as well as providing some practical advice for gesturing naturally in front of your jury or your judge. 

Now, this is the point in an introduction to an article on gestures where I would point out the familiar statistic that communication is 93% non-verbal...if that were true.  Actually, this urban myth is based on a popular, but incorrect reading of some research in the sixties that even the author of the study has disavowed.  It remains true that physical gestures are important parts of a message, but that is not because they convey a direct or definite meaning.  I am not one of those who thinks you can 'decode' gestures or other body language to reveal hidden meanings -- it just isn't that simple.  Instead of playing a deterministic role, gestures are more subtle.