Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm:

It is becoming axiomatic that you can’t talk people out of hardened views. Particularly on political subjects; the common view is that we are in a “post-persuasion” era. Perhaps that depressing assumption explains why I was hopefully drawn toward a recent headline in The Atlantic magazine, “How We Got Trump Voters to Change Their Minds.” The article reports on a voter contact strategy called “Deep Canvassing,” and is by George Goehl, Director of People’s Action, an organization of working-class political activists. Deep canvassing refers to candid longer two-way conversations with voters averaging about 15 minutes each. Canvassers are carefully trained to engage in patient and nonjudgmental conversations about current and personally relevant issues that bear on the election.

Based on an independent, scholarly analysis of more than 200,000 such interactions, the practice boosted Joe Biden’s rate among those contacted by 3 percent on average, and higher amounts with some groups (e.g., 8.5 percent with independent women). That may not sound like a tremendous swing, but it is 102 times more effective than other, more traditional, electioneering methods. The secret seems to lie in taking one’s time and creating an opportunity for the target to think and share, without becoming defensive. It is a conversational approach to persuasion that is not fully, or directly, applicable to the courtroom, but I believe it still carries some lessons for legal advocates. In this post, I will discuss a few elements of deep canvassing that are important to persuaders in all contexts, including litigation.

Show Empathy

The way to turn someone around is not to tell them that they’re wrong, nor to tell them that you’re right, nor to point them toward mountains of evidence supporting your preferred conclusion. The first step is to get your target past their resistance and toward a willingness to crack their mind open at least a little bit. As Goehl notes, “Empathy, it turns out, is an extremely effective conversion tool.” You need to start by validating your target audience’s perceptions in some way. That is why “I know how you feel” can be a powerful rhetorical move.

When I suggest that kind of acknowledgment — for example, agreeing that it might initially look bad for our side — client’s will often resist that with every fiber. After all, acknowledging an apparent weakness seems counterintuitive and at odds with the “concede nothing” mindset in court. When you know your audience is likely to already be there — when your jury, for example, can’t escape a big negative — then it can be refreshing and disarming for you to acknowledge to that audience that you see it too. Admitting that feeling (I expect that you see the problem…) while validating their reaction (…and, at this stage, I don’t blame you for thinking it’s an open-and-shut case), may help to keep your audience open-minded for what comes next (…but you have not yet heard a few key facts).

Ask About Experiences

Despite what the rational legal model would posit, people don’t tend to reason their way to a conclusion by looking at the relevant facts. Instead, they feel that one conclusion or the other resonates with their own experiences better, then they muster evidence to support that conclusion. As Goehl explains, “Research has shown time and again that people vote from an emotional place. It’s not so much that facts don’t matter, it’s that facts and talking points do not change minds.” And according to the deep canvassers, you access that emotional place by tapping into personal experience. Discussing a person’s history and concerns regarding health care, for example, can help to reframe that issue in an election.

Of course, in a courtroom there are limits to how dialogic you can be. You can’t pause during opening or testimony to ask a juror, “Tell me about your experience with this kind of thing.” But you can ask for that in voir dire, and you can anticipate and adapt to expected reactions throughout the case presentation. Referencing that experience can be a good way of framing testimony (Mr. Smith, based on their own experiences, jurors might be wondering why someone would do that, so I want to ask you…).

Tell Stories

The deep canvassing strategy also rests on stories: those that are told by the canvasser, and hopefully ones elicited from the target. “The practice of sharing narratives,” Goehl notes, “is perceived as less manipulative and more engaging than facts and creates an emotional connection that moves beyond surface-level talking points.” It also humanizes, connects the parties, and provides a bridge for overcoming the resistance that people put up in order to protect their own self-identities.

Of course, the only time you might hear the jurors’ stories is in voir dire, and that is a reason to probe with open-ended questions, if you are allowed to. But narratives can be powerful in witness examination as well, since getting the witness to tell their story is often the point of direct examination, and can be a useful tool for some depositions as well. A natural setting for stories in the courtroom will, of course, be in opening statement. Litigators have heard this advice before, but the advantage of deep canvassing over other forms of electoral persuasion provides a reminder of just how much advocates need to downplay the structured and analytical focus on evidence and argument, and instead try to immerse your jurors, at least initially, into a complete understanding of what happened.

One final point of interest is that the research on deep canvassing found that one technique did not work: Negative attacks on Trump tended to yield no benefits at all. Instead, a negative focus caused targets to become defensive and argumentative. For that reason, the goal was to have positive-leaning conversations about Biden, while empathizing and expanding on stories and experiences. Maybe the deep canvass gives us some hope that persuasion is still possible even in this polarized age.

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Thanks for reading. I am a litigation consultant (bio here) specializing in mock trial research, witness preparation, jury selection, and case strategy, generally (but not always) in high-value civil cases. If you have a comment, a request for a future topic, or a concern about a current area of litigation, or a question about your own case, contact me now.


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Other Posts on Dialogic Strategy: 

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