Persuasive Communication: Art, Science and Six Word Stories Steven E. Perkel, DSW, LCSW Senior Litigation Consultant Archer & Greiner, P.C. [email protected]

Persuasive Communication:Art, Science and Six Word Stories

Steven E. Perkel, DSW, LCSWSenior Litigation ConsultantArcher & Greiner, [email protected]

Copyright, Steven E. Perkel, 2011 All Rights Reserved

Win or Lose ?Control or Influence?

▫Facts▫Judicial Rulings

▫Testimony▫Juror Bias▫Credibility▫Sincerity▫Likeability Copyright, Steven E. Perkel, 2011 All Rights

Reserved

ELP! ELP! ELP!

•Ethos•Logos•Pathos


Persuasion Across the Life-Cycle


Persuasion Tip: Remember how many details jurors are expected to remember and how hard their job is. Let them know you know this . Doing so is a form of reciprocity and acknowledgement.


Research Shows Jurors Focus On...

Lisko, 2010 Copyright, Steven E. Perkel, 2011 All Rights Reserved

Juror Truths…

1. More choices = more accountability

2. Jurors create a story to make sense of what they heard that is congruent with the facts

3. Testing, specific product , specific user over extended period of time

4. Product instructions: Analytical vs. Non-Analytical Jurors


Juror Truths Continued…5. If jurors believe manufacturer knew or

should have known of off-label uses but did not change instructions or warnings blame shifts

6. User/Plaintiff scrutinized for off-label use or for not following instructions

7. Use of knowledge by parties to mitigate harm. Consumer behavior vs. Manufacturer’s ability to keep people safe

8. Credibility attributed to eye witnesses who are perceived as neutrals (Proven Jury Arguments & Evidence, Karen Lisko, 2010)


Source: Ken Broda-Bahm, Ph.D. Persuasion Strategies, The Jury Expert, May, 2011, Used with permission


Persuasive communication is selling.

What are we asking jurors to buy?

We want jurors to be motivated to “buy” your arguments and decide in your client’s favor.


Persuasive non-verbal communication begins when potential jurors enter the court room and they begin to size things up.

Persuasion Tip: Appearance-Facial Expressions-Gestures-Gait-Posture are all considered by jurors the minute they enter the courtroom.


IDENTIFY THE MEANING


Establish Rapport

• Engage all the senses.

• Speak in the present tense.

• Use commonsense anchors to support your themes.

• Vary the pace, tone and volume of your voice for emphasis and to prevent boredom.

• Be direct, clear and whenever possible avoid jargon. If you must use jargon be sure you have a way to link it to familiar experiences.


Make the Most of Every Opportunity

•Tone of voice•Eye contact•Acknowledgement•Interactions with client•Interactions with adversary•Jurors will compare and contrast

Persuasion Tip: Remember first impressions, are lasting impressions and never should be minimized.


Jurors want…• To know what the case is about

• Information to help them make decisions

• Ways to determine who is telling the truth

Jurors will…• Compare what they hear to what they believe

• Seek information that makes sense

• Try to figure out what is fairCopyright, Steven E. Perkel, 2011 All Rights Reserved

Opening Statements & Persuasion

• Opening statements are fact rich

• The facts should be supported by the evidence

• Opening statements frame the issues

• Themes in openings provide bases for narrative continuity

• Research confirms that juror’s initial decisions after hearing openings are remarkably similar to the verdicts they reach at the end of a trial.


Say hello to Earnest Hemingway.

Uses short sentences/phrases Uses short first paragraphs-chunks

Creates vigorous images Narrative is smooth and flows

No dictionary required Copyright, Steven E. Perkel, 2011 All Rights Reserved

http://www.time.com/time/covers/0,16641,19541213,00.html

“Then the fish came alive, with his death in him, and rose high out of the water showing all of his great length and width and all his power and beauty. He seemed to hang in the air above the old man in the skiff. Then he fell into the water with a crash that sent spray over the old man and over all the skiff” (HEMINGWAY, E. (1952). The old man and the sea. New York, Scribner)


Effective Themes •Easy to understand•Easy to remember•Resonate with commonsense•Reflect the fairness of your position•Are supported by facts and evidence

Persuasion Tip: Ask rhetorical questions throughout oral arguments and in closing that drive your themes home for jurors.


Themes Integrate Persuasive Messages

•Use art and science to select and test themes Experience-Literature-Colleagues-Strangers Reaction Groups-Focus Groups-Mock Trials

•Consider using thematic word pairs Good v. Evil Responsibility v.

Blame Safety v. Profit Caution v. Impulsivity Trust v. Betrayal Truth v. Lies Research v. Supposition Care v. Negligence


Authenticity•Hemingway had many personas. He was a

hunter, fisherman, journalist, war correspondent, novelist, expatriate. All of these personas are apparent in his books and short stories.

•Hemingway lived first and wrote later.

•A lawyer’s advocacy skills can benefit from living first and writing later.

•As you prepare for deposition, arbitrations, mediations or trial consider using immersive preparation.


Authenticity and Immersive Preparation

• Immerse yourself in what is alleged to have happened and what is being contested.

• Step into the shoes of your client. Learn about them, their hopes, fears and expectations. Consider the trust your client has placed in you and your firm.

• Consider the consequences of the litigation; of winning; of losing.

• Then, and only then craft your story. Jurors know through observation when an attorney is engaged, prepared and committed to their client and her cause. Demonstrating this commitment is a form of social proof. Copyright, Steven E. Perkel, 2011 All Rights

Reserved

Demonstratives•100% increase in juror retention of visual

presentations compared with oral presentations.

•Retention increased 600% when the combining of visual and oral presentations were compared to oral presentations alone.

•Lesson: Use both visual and auditory means to help jurors do their jobs.


Closing Argument-Narrative Compass

• Who are the characters?• What happened to them?• Where did it happen?• When did it happen?• How did it happen?• Why did it happen?• Has it happened before?• What is the injustice in question?• What can jurors do to remedy the situation?



“For Sale: baby shoes, never worn.”

Hemingway’s six words invite the reader to invent rich characters and fill in the story.

True to story form, there is a beginning, a middle and an end—an end that captures the imagination and demands an investment.

The words are simple. The facts are clear. The imagery is universal. The emotional impact is compelling.


Invoke Hemingway

Open with what you know.

Establish rapport with a compelling opening.

Tell jurors what you promise to deliver.

Tell jurors what you want them to deliver.

Persuade with facts delivered via story-telling.

Close with a logical, legitimate and engaging six word story.

Abraham Lincoln on Persuasion :“If I had eight hours to chop down a tree I’d spend six sharpening my axe.


Case won: preparation, knowledge, skill credited.



Steven E. Perkel, DSW, LCSW is the Senior Litigation Consultant with Archer & Greiner, P.C. He received his doctorate from the University of Pennsylvania. Dr. Perkel has expertise in persuasive communication, human behavior in social environments and qualitative research methodology . His practice focuses on assisting counsel with strategic litigation planning, effective communication and pre-trial research.

He is a member of the American Society of Trial Consultants and has presented at a variety of meetings at the local and national level.

Dr. Perkel has had two articles recently published in The Jury Expert including If They Don’t Like You They Won’t Hear You: An Essay on Persuasive Communication and C-SWOT and PLA-Squared: Techniques for Avoiding and Breaking Bad News (with Eric Dakhari, Esq.)

Documents

Persuasive Communication: Art, Science and Six Word Stories Steven E. Perkel, DSW, LCSW Senior Litigation Consultant Archer & Greiner, P.C. [email protected]