Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm: 

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What counts as good legal persuasion differs from one country to the next. Different cultures, different legal rules and systems, and different fact finders all make a difference. But one thing stays consistent no matter the venue or the tongue: Legal persuasion boils down to people using communication to influence other people. That common purpose stands out in a paper released last month for the United Nations International Expert Programme in Investigative and Legal Psychology (Barosa, 2017). The paper is written by a Portuguese criminal lawyer, Pedro Barosa, and provides a literature review and reflections on emotional intelligence, mostly aimed at persuading judges (appropriate to the Portuguese system) but, as he notes, the thoughts are also broadly applicable to persuading anyone. 

Mr. Barosa begins with the novel and disarming admission that, throughout his general and legal education, and continuing into his legal practice, he has consistently considered himself to be less cognitively intelligent than most of his peers and adversaries. But despite that, he wins more often than not, based, he believes, on an appreciation and use of emotional intelligence. The concept of “emotional intelligence” has been around for a couple of decades, and it refers to the  ability to perceive, analyze, generate, and use emotional responses. It does not just mean high levels of feelings, it means the ability to reason constructively about feelings. Barosa boils the definition down to three processes: “1) appraising and expressing emotions in the self and others; 2) regulating emotions in the self and others; and 3) using emotions adaptively to achieve one’s goals.” The research shows it to be unrelated to cognitive intelligence, meaning that people may be a genius in reasoning, but still a novice at emotional intelligence. Because law as a profession can self-select for individuals who prioritize logic over emotions, and because effective legal persuasion requires a mix of both, it is worth thinking about. In this post, I will share seven reasons to improve emotional intelligence informed and inspired by Barosa’s essay, as well as three ways to do it. 

Seven Reasons: Emotional Intelligence Will Help You… 

1. See Beyond the Logic and the Law

Legal persuaders need to see the big picture, and that means more than just proving up the elements or fitting the facts to the law. As Barosa notes, quoting the Handbook of Trial Consulting (2011), “The key to success for any attorney lies not in the mastery of law or in the serendipity of a perfect fact pattern, but in the ability to persuade.” An attorney with higher emotional intelligence is able to see more variables in play, including the logic and the law, but also including motivations and emotional responses. 

2. Work Better as a Team

Referring to the other name for emotional intelligence, “Emotional Quotient” or EQ, Barosa shares the truism that “IQ gets you hired, but EQ gets you promoted.” He also refers to the substantial body of research linking emotional intelligence to effective team performance, as well as research showing that lower levels of emotional intelligence predict interpersonal conflict. When the team and especially the leadership includes high emotional intelligence, the working groups is likely to be more understanding, respectful, and productive. 

3. Engage in More Effective Nonverbal Communication

Successful legal persuasion means not just saying the right words, but saying them naturally in the right way as well. Good nonverbal communication isn’t mimicry. The individual who is aware of and able to express natural emotions is going to have an advantage as a presenter. As Barosa notes, “non-verbal communication skills of a trial advocate can be as effective to success as the verbal ones. A kind smile to a hostile witness, eye contact with one judge in a specific moment or even a small gesture as picking up his/her pen from the floor can sometimes have particular significance and helps lawyers create more empathy with judges.”  

4. Navigate Between Assertiveness and Aggressiveness

Litigation up to and through trial is often tough business, and there can be a time for dialing-up your communication so that it conveys greater intensity. But I’ve met more than a couple of lawyers who seem to have only two settings: “nice” and “really nasty.” The emotionally intelligent lawyer is able to adapt with greater subtlety than that. “There remains room for colorful and creative advocacy within the bounds of good taste,” Barosa writes, quoting R.L. Carlson, but “the challenge to the trial lawyer is to be a little pyrotechnic without becoming pyromaniac.” 

5. Create Empathy with Judge or Jury

Ultimately, the goal is to get the decision maker to feel the same way about the strength of your case as you do, and that requires empathy. We are used to seeing storytelling as the frame for discussing the human events at the center of a case, and the best stories are those that evoke emotions. Trial lawyers with emotional intelligence, Barosa writes, have greater abilities in “perceiving and appraising judge’s emotions or moods in court and in dealing with it or using that same information in order to influence the court and the decision-making process.” 

6. Develop Credibility

People tend to agree with people they like and with people who are able to show they are similar. That credibility often comes down to an assessment of character, or “ethos” as the ancient Greeks referred to it. A perception of honesty can be as much an emotional as a logical reaction. We tend to believe someone when we get a feeling of sincerity, and an absence of guardedness or strategy. The speaker with a high level of emotional intelligence is more able to convey their confidence and speak to the doubts and reactions of the target audience, and that contributes to credibility. 

7. Identify with Clients’ Needs and Interests

Of course, lawyers don’t spend all their time arguing in courtrooms. These days especially, they spend vastly greater amounts of time communicating with clients. That side of the practice requires not the talented presenter but the sensitive counselor. As Barosa asks, “Lawyers can be masters in law, but what about gaining their clients’ trust?” Shepherding clients through the litigation path requires not just framing the options and meeting the deadlines, it also requires listening and adapting to the concerns, motives, and fears that are really driving the client’s role in the process. 

Three Ways: Boost Your Emotional Intelligence By… 

1. Talking with Fact Finders

Emotional intelligence means accounting for your audience as people, not just as outcomes. So a good step in that process of humanization is to talk with those humans as often as possible, but not improperly of course. After the trial is over, the candid reactions are valuable, not just in giving you some do’s and don’ts for next time, but in developing your understanding of the full spectrum of their reactions. It isn’t often possible with judges, and sometimes isn’t possible with jurors, but whenever a post-trial conversation is legal and appropriate, take advantage of it. And one situation where it is always possible is before your trial or hearing, in the form of a mock jury trial or mock bench trial or hearing. Even when your decision makers are not exact replicas of the jury or the judge who will be hearing your case,  the exercise helps to humanize your target, and that makes you more emotionally intelligent. 

2. Being a Renaissance Person

Emotional intelligence is promoted by the broadest possible understanding of human relationships. So you are helping to build that awareness and adaptability, not primarily by studying law or even by studying persuasion. You also build that up by participating in art, culture, and recreation. Someone who is well read and amply exposed is almost inevitably going to have a broader understanding of human motives and human complexity. So if you ever need to rationalize reading something other than a deposition or a motion, or if you feel you need to justify an evening at a concert or a movie, then just tell yourself that you are helping to build the complete person, who will also be a more effective legal persuader. 

3. Practicing Good ‘Reaction Hygiene’  

Emotional intelligence comes down to reaction: How do you react to ideas and to others in communication? The law, unfortunately, can help you to develop a kind of intellectual hair trigger: You hear an argument and you automatically generate a response. So the best advice for lawyers trying to build up their emotional intelligence is to practice good hygiene around those reactions. That includes three components: 

Awareness: Pay attention to how you are feeling. 

Questions: Ask others what they think before committing yourself to a reaction. Focus on the “Why” and not the “What” of their positions. 

Pause: Take time to think and observe. Don’t force yourself to react in the moment. 

 To end with one of the most quotable lines in Barosa’s paper, “Being a trial lawyer is having one goal — to win. The only other option is losing.” The goal of legal communication is still victory, but a broader and more completely human perspective helps you get there.

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Other Posts on Emotions in Litigation: 

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Barosa, P. (September, 2017). The Significance of Emotional Intelligence to Trial Lawyers. United Nations Interregional Crime and Justice Research Institute, IEPILP Dissertation, URL: https://www.plmj.com/xms/files/Tese_PEDRO_BAROSA_plmj.pdf

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