Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm: 


Have you ever found yourself in an argument where the other side just keeps digging in deeper? Instead of conceding, agreeing, or even just softening their stance, they’re becoming even more committed to a position that (you think) you have shown to be incorrect? The more facts and reasons you give, the harder they commit to a contrary position. If you’ve ever found yourself in that position, then congratulations: You’ve learned one of the first principles of human psychology. We want to believe that reasons and evidence work, and when someone sees that their beliefs are based on error, they’ll change. However, that does not account for motivated reasoning or the human need for cognitive consistency. People select positions for many reasons, not just rational reasons, and people want to feel that they are consistent in their positions. Fundamentally, people want to think that they’re right.  

For the target of persuasion, that motivation can serve as a kind of cage. If new or contrary information is just met with a strong wish to deny it, then they can never break out of the cell of their own opinions. This matters in litigation, since potential jurors can have strong and inflexible views on parties, issues, stories, and the case itself once they’ve heard a little about it. The existence of peremptory strikes is a recognition of our belief that there are some people we are just never going to be able to persuade. So, if you run out of strikes and end up with an attitudinally adverse partisan on your panel, does that mean your chances of persuading that person are nil? More broadly, does it mean persuading skeptics is doomed? Not necessarily. There is a technique that is both simple and profound in implications. Covered in a recent article in Quartz Media, “A Philospher’s 350-year-old Trick to Get People to Change Their Minds Is Now Backed Up by Psychologists,” the technique is supported by both ancient and modern persuasion experts. And it is a principle that applies well to courtroom persuasion: If you want to persuade someone, especially someone who is initially skeptical of your position, you need to meet them where they live. In other words, you need to start by validating their current beliefs (‘Based on what you’ve heard, you’re correct‘) and then revising and supplementing those beliefs (‘…but you have not yet heard everything‘). This post will discuss the implications of that and share an example. 

The Ancient and Modern Appeal of Persuasive Validation

The philosopher referred to in the article’s title is Blaise Pascal, a Frenchman who lived from 1623 to 1662 who was also a mathematician and inventor. This is what he had to say about persuading a resistant target:  

When we wish to correct with advantage, and to show another that he errs, we must notice from what side he views the matter, for on that side it is usually true, and admit that truth to him, but reveal to him the side on which it is false. He is satisfied with that, for he sees that he was not mistaken, and that he only failed to see all sides. Now, no one is offended at not seeing everything; but one does not like to be mistaken, and that perhaps arises from the fact that man naturally cannot see everything, and that naturally he cannot err in the side he looks at, since the perceptions of our senses are always true.

Now, I don’t know about the “perceptions are always true” part, but the part about people “not liking to be mistaken” is very sound, and the part about recognizing the individual’s perspective and validating those beliefs based on that perspective is still a very good idea. The message in persuading someone by first meeting them where they are is a message in two parts: 

1. Here is where you are right

I understand your perspective, and I understand that within that perspective, your views are correct, or at least reasonable. 

2. But here is where you are incomplete

If one’s perception is partial, then that is a face-saving way to believe both: a) I was originally correct based on what I knew and had access to, but b) I can still change my mind based on additional information.  

The article quotes University of Texas at Austin psychology professor, and the observation is worth sharing at length. 

One of the first things you have to do to give someone permission to change their mind is to lower their defenses and prevent them from digging their heels in to the position they already staked out,” he says. “If I immediately start to tell you all the ways in which you’re wrong, there’s no incentive for you to co-operate. But if I start by saying, ‘Ah yeah, you made a couple of really good points here, I think these are important issues,’ now you’re giving the other party a reason to want to co-operate as part of the exchange. And that gives you a chance to give voice your own concerns about their position in a way that allows co-operation.

In other words, what comes first is engagement based on some kind of common ground. Once that’s happened, and has won you some credibility, you have a chance to nudge those views in a new direction. 

Validating in Your Trial Communications

Whether addressing judges or juries, it is important to recognize that you are not writing on a blank slate. The jury is bringing in a slate that is filled with their own attitudes and perceptions. The judge, more specifically, is bringing in a slate that has been constructed through prior briefings, hearings, and rulings.

For a defense attorney, in a jury trial in particular, your opening statement will never be presented in a neutral context. Instead, you’ll rise to speak as the last words from the plaintiff are still ringing in their ears. Your audience probably believes at this point that you represent the bad actor in this story. This is a great example of where it pays off to begin with some sensitivity and adaptation to that fact. Start attacking the other side right out of the gate and you’re just confirming their perception of you as the bad actor. But if you acknowledge and validate what they must be thinking right now, you surprise them, potentially win some credibility, and provide a favorable way for your targets to start thinking about changing their minds.

After all of that, I expect you probably think that the company I represent here in court is about the least responsible, least caring company on the planet. And you probably think that I am coming up here to make a bunch of excuses for that. If that’s where you are at this point, I don’t blame you. That is where I would be too if all I had heard is what the Plaintiff’s attorney just told you. 

With just that information, you would be right to think my company acted irresponsibly, and you would be right to think that they’re liable. 

The problem is that you have not heard the whole story — you have not even heard the most important parts of the story. 

For example, here is one critical fact my colleague on the other side left out….

As you account for that information, and much more, you will be able to move beyond your first impressions and see the whole picture, a picture that, we believe, will show that my client acted responsibly, thoughtfully, and carefully throughout the events at issue in this case.  

That kind of message, something I call a “credibility repair,” is something I frequently recommend including at the beginning of a defense opening. Whenever we expect to be following an effective plaintiff’s presentation (which is pretty much every time), it helps to start by acknowledging that it probably had some level of effectiveness with the jury, but it left out some critical information. That way, the jury’s interest is piqued to hear the new information, and that offers a chance at self-persuasion, where the audience participates in finding its own way to a revised conclusion. As Blaise Pascal also wrote, “People are generally better persuaded by the reasons which they have themselves discovered than by those which have come into the mind of others.”


Other Posts on Rhetorical Strategy: 


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