The Persuasive Edge

Richard Crawford, Charlotte Morris

Table of Contents  (Back to book ordering page)

Acknowledgment xvii
A Note to the Reader About Our View of the American Jury xix
Preface xxi
Introduction xxiii

Chapter 1: Developing a Practical Approach to Persuasion 1
Definitions and Parameters for This Book 1
Persuasion is a complex process 2
Persuasion happens by degree 2
Persuading one versus persuading many 2
The Lawyer's Continuous Persuasion Campaign 3
Persuasion Is Purposeful: Always Have a Communication
Strategy and Clear Goals 3
Seven Major Communication Choices 4
1. Arrangement or sequence choices 4
2. Select and edit all of your data 6
3. Make careful delivery choices 7
4. Word choice: a matter of priority 7
5. Choose the persuasion site 8
6. Match your appeal focus to the receiver 8
7. Decide what to disclose about yourself 9
Using the Choice-Making Approach in Non-Jury Settings 10
1. Getting witness cooperation before the deposition or trial 10
2. Making choices related to office settings 11
3. Persuading the judge 12
4. Negotiating and bargaining 13
The Jury Trial: The Beginning of Post-Trial Persuasion 15

Chapter 2: Building an Honest Relationship with the Jury 17
You Are the Central Persuasion Equation 17
Credibility Is a Matter of Substance and Style 18
The Psychology of Evidence: Three Conclusions 19
1. Evidence is perceptual 19
2. The advocate shapes and affects the evidence 20
3. The advocate as a "witness" during trial 20
How the Psychology-of-Evidence Conclusions Should Affect Communication Behavior at Trial 21
Do Not Try to Hide from the Jury 22
Three Credibility Factors 22
Communicating Your Competence to the Jury 23
1. Preparation is most important 23
2. Carefully work out your opening lines 23
3. Use the legal objection to display confidence and
competence 23
4. Move with purpose 24
5. Demonstrate your sense of purpose and direction 24
Getting the Jury to Trust You 24
1. Admit mistakes to the jury 25
2. Identify the weaknesses in your own case 25
3. Use legal objection grounds to assert your integrity 26
Getting the Jury to Like You 27
1. Find the right formula for self-disclosure 27
2. Use your "humanness" to reduce the psychological distance between you and the jury 28
3. Keep the balance between being combative and
courteous. 28
Identify Focus Problems in Your Self-Image 29
Objectively Look at Your Image Projections in Front of a Jury 30
How to Begin Making Image-Projection "Corrections" 31
Putting Persuasion and Credibility into Perspective 31

Chapter 3: Reaching Out for Juror Attention 33
The Form versus Substance Dilemma 33
Holding Juror Attention Is Totally Your Responsibility 33
Communicate Your Commitment with Voice and Body 34
Use Vocal Force to Carry Your Message 35
Use Vocal Pitch to Hold Attention 36
Rate Patterns as Persuasive Tools 36
Integrate the Three Delivery Variables 37
Use Courtroom Space to Your Advantage 38
Persuasion through Nonverbal Communication 40
1. Appear at ease in the courtroom 40
2. Avoid any social interactions with your opponents 40
3. Be aware of the materials on your table 41
4. Avoid displaying any negative social habits 41
5. Be attentive to the judge's ritualistic opening remarks 41
Let the Message Dominate 41
Gender Differences in Verbal and Nonverbal Behavior 42
The Case against Using Written Notes 43
Exceptions to the no written notes rule 44
The danger of memorizing a written speech 45
Break down your speech into a series of mini speeches 45
Consider the use of mnemonic systems 45
Another organizational method for recall 46
Keeping Presentation Matters in Proper Perspective 46

Chapter 4: Persuasion in Voir Dire 47
The Seven Goals of Attorney-Conducted Voir Dire 48
What Potential Jurors Expect 49
The Approach to Attorney-Conducted Voir Dire 50
Get to Know Your Jurors 50
Preparing for Voir Dire 51
Identify the Issues You Need to Discuss 51
Case-specific topics 53
Create a Profile of Desirable and Undesirable Juror Traits 54
Crafting the Questions 55
Not All Questions Are Created Equal 56
Open-ended 56
Closed-ended 58
Combination 59
Scaled response 59
Order Effect: Don't Put the Cart before the Horse 60
Word Choice: It's Not Just What You Say, It's How You Say It 61
Tackling a Sensitive Topic 64
Allow Jurors to Advance or Argue Your Case 66
Avoid the Temptation to Argue 68
Exceptions to the Rule: Seeking Commitment from Jurors on Critical Aspects of Your Case 68
Practice Voir Dire 70
Anticipating and Overcoming Objections 71
Managing Juror Names 73
Opening Remarks 75
Getting Started 77
Use Pace and Variety to Keep Things Interesting 78
Know When to Quit 79
What to Do with the Answers You Get 80
Accentuate the positive 80
Illuminate-then eliminate-the negative 82
Making Cause Challenges 83
Recording and Organizing the Information 87
Know the Rules But Don't Be Afraid to Try and Change Them 88

Chapter 5: Developing a Strike Strategy 93
Four Peremptory Challenge Traps 93
1. The single-factor trap 93
2. The demographic trap 94
3. The nonverbal instinct trap 94
4. The war story trap 95
Every Case Requires Its Own Strategy 96
Additional Peremptory Challenge Factors 97
Jurors who mirror your client 97
Self-concept 99
Level of compassion 99
See the forest and the trees 99
Personality types or systems 100
Questions Designed to Discover Personality Types 101
Top Ten Questions for Civil and Criminal Cases 103
Civil case questions 103
Criminal case questions 105
Now You Have a Jury: How to Continue the Campaign You
Started in Voir Dire 106
Opening statement 107
Direct and cross examinations 107
Closing argument 108
Conclusion 109

Chapter 6: What to Do When Attorney-Conducted Voir Dire Is Strictly Limited or Not Allowed 111
Judge-Conducted Voir Dire 111
1. Submit a pre-trial motion for attorney-conducted and/or individual sequestered voir dire 111
2. Ask to submit your own questions 113
3. Ask for the use of a supplemental juror questionnaire 114
4. Conduct a pre-trial investigation of jurors 114
The Ten-Minute Voir Dire: What to Do When Your Time Is
Limited 116
The Use of Supplemental Juror Questionnaires 118
Make your request early and offer sound reasons for its use 118
Keep it simple 119
Timing is everything 120
Questionnaire construction 120
Making Use of What You Learn from SJQs 122
Create a card file system 123
Create a single-page summary 123
Rate each prospective juror 124
Follow-Up Questioning 124
Forging a New Voir Dire Frontier 125

Chapter 7: Securing Juror Commitment during Opening Statement 127
Put a Premium on Opening 127
Steer Clear of the Road Map "Trap" 127
What Are the Limits? 128
Use Credibility Capital with Care 129
Psychological Presentation of Evidence during Opening
Statements 131
Jurors Won't Wait for the Evidence before Taking Sides 131
Convince the Majority during Your Opening 132
Ten Essential Elements of Effective Opening Statements 133
1. The power of narration 133
2. Perspective 135
3. Motive 136
4. Themes 137
5. Sequencing and word choice 139
6. Present tense speech 140
7. Directness 141
8. Specificity 143
9. Embrace your weaknesses 143
10. Set the standard 144
How Much Should You Mention Your Opponent's Case? 146
Voir Dire and the Opening Statement as a Duet 148
Beginning Your Opening Statement 150
The first minute is prime time 150
Avoid wasting prime time 151
Reload your silver bullets for your concluding paragraph 151
Preventing and Responding to Objections 152
Deliver Several Statements as if You Are a Witness 153
Do Not Wait to Mention Damages 154
How Long Should Your Opening Be? 155
When Should You Compose the Opening Statement? 156
Never Waive or Reserve Your Opening 156
The Defense Can Have the Opening Statement Advantage 157
Use the Best of What You Have and Who You Are 157

Chapter 8: Advancing Your Case while Witnesses Are on the Stand 159
Persuasion through Other People 159
Tend to your Witnesses Long before Trial 160
Fourteen Things to Focus On: Preparing Witnesses for Direct Examination 160
1. Be honest about the scrutiny 161
2. Prepare your witnesses for proper eye contact 161
3. Let witnesses practice interacting with exhibits 162
4. Empower your witnesses to ask questions occasionally 163
5. Help your witnesses with posture and use of hands 163
6. Teach witnesses how to vary the pace of their testimony 163
7. Acknowledge the weaknesses in testimony 164
8. Watch out for negative mannerisms in your witnesses 165
9. Prepare for levels of denial or affirmation 165
10. Help the witness return to the emotions of the original
moment 167
11. Help your witness use more effective language 167
12. Help witnesses avoid the "you were coached" trap 168
13. Always test your witnesses with a hypothetical
cross-examination 169
14. Appearance 169
Special Considerations for Expert Witnesses 170
1. Eliminate "shop talk" 171
2. Don't hide the truth from experts 171
3. Look for teaching experience 172
4. The well-trod witness 172
5. Have an answer for the inevitable 172
6. Get right down to business 174
Six Tasks to Complete during Direct Examination 175
1. Be sure the jury knows how much you like and believe
your witnesses 175
2. Retain eye contact while asking questions 175
3. Shield your witnesses by leaving nothing for your
opponent 176
4. Mix some cross-examination with your direct
examination 177
5. Control the sequence and drama of your witness'
testimony 177
6. Carefully select your witness order 178
Seek the Cooperation of a Hostile Witness before Attempting
Cross-Examination 178
Composing and Delivering Cross-Examination Questions 179
Nine Cross-Examination Choices 180
1. Approach cross-examination as if it were a speech 180
2. Think of the witness as "irrelevant" during your
examination 181
3. Hold the witness to one-syllable responses 181
4. Use your positive credibility as a cross-examination
weapon 183
5. You may maintain an adversarial approach even with a "gentle" witness 183
6. At times, studiously avoid interrupting the witness 184
7. Let witnesses expose their own question-avoidance 185
8. Never give away your power and control 185
9. Adopt a four-step model for all major cross-examination challenges 186
Other Stylistic Considerations for Cross-Examination 186
Choose among a variety of leading question constructions 186
Use some theatrics during delivery of a leading question 187
Occasionally begin questioning while still seated 187
Don't Let the Jury Know When a Witness Throws You a Curve 188
Cross-Examining Witnesses Who Evoke Sympathy 189
Consider the consequences of asking no questions 189
Lead such witnesses in an inquiring manner 189
Try to avoid cross-examining hostile witnesses if you have
not met with them before trial 189
Special Considerations for Child Witnesses 190
Become informed about child development and child
psychology 190
Do not abandon your witness examination principles 190
Protect or impeach children before and after their testimony 190
Use electronic recording technology 191
Efforts to impeach a child may backfire 191
When Criminal Defendants Should Testify 191
Mingle Substance and Hard Work with the Process of Managing Witnesses 192

Chapter 9: Maximizing Persuasion Potential during Closing Argument 193
The Role of Closing Arguments 193
How Closing Argument Differs from Opening Statement 194
Consistency Is Key 194
Finish What You Started: The Connection between Opening
Statement and Closing Argument 195
Begin with strength 195
Perspective 197
Motives 198
Narration 198
Themes 199
Embracing your weaknesses 200
A Dozen Do's and Don'ts for Closing Argument 201
1. Keep the speech in clear focus 201
2. Draw clear conclusions in your closing 202
3. Bring witnesses back to "testify" 202
4. Be persuasive and poetic 203
5. Inoculate the jury against your opponent's upcoming
summation speech 204
6. Prepare your rebuttal speech in advance 206
7. Prepare the jury to make the difficult decisions 206
8. Let jurors know you were paying attention 212
9. Always refer to the jury instructions 212
10. Use analogies and metaphors with caution 214
11. Empower the jury 214
12. Conclude with directness, confidence, and eloquence 216
The Persuasive Power of Passion 216
Close with Personal Authenticity 217

Chapter 10: The Power of Visual Persuasion 219
Overarching Principles for Visual Persuasion 220
Explore your options early 220
Match the presentation to your purpose 220
Practice still makes perfect 221
Don't stake everything on visual presentations 222
Five Common Mistakes When Using Visual Aids 222
1. Failure to get feedback 222
2. Ineffective use of documents 222
3. Lack of preparation for the use of transcripts 224
4. Haphazard use of photographs 224
5. Too much or too little information on a timeline 225
Opening Statement: A Prime Graphic Opportunity 226
Using Graphic Aids with Witnesses 228
Cross-Examination Techniques 228
Using Graphics during Closing Argument 229
Seven Additional Considerations for the Use of Visual Aids 230
1. Make sure the courtroom stage is ready 230
2. Find ways to involve the jury 230
3. Don't pass pictures and charts among the jurors 231
4. Stop just short of the most grisly depictions 231
5. Keep the presentation moving 231
6. The strategic use of titles 232
7. Variety is the spice of life (and trial) 232
In the Courtroom 232
Everything in Moderation 233

Chapter 11: Expanding Your Trial Strategy and Staging Techniques 235
Consider a "New" Approach to Taking Most Depositions 235
1. Take care to mask your value judgments about the witness and the case 236
2. Create an atmosphere for problem-solving 236
3. Don't let your strategy prevent you from going where the witness takes you 236
4. Listening is an active behavior, not passive 236
5. Use positive feedback to encourage greater participation 237
Carefully Divide Duties with Co-Counsel 237
Use Spectator Support 237
Sharing Voir Dire with Your Client 238
Five Linguistic Considerations for Trial 238
1. Don't help to humanize your opponent 239
2. Package the fear of a loss in the language of certain
victory 240
3. Make your opponents appear to lack confidence 240
4. Characterize your opponent's case as a story 241
5. Take the "we versus they" stance 241
Enlist the "Great American Myths" 242
Persuasion and the Legal Objection 243
Let the Jury Draw Some Final Inferences 244
Experiments and Demonstrations in Court 245
Develop Your Own Tactical Use of Passion 246
Carry a Special Message for the Jury during Closing 247
Considerations for "Mega-Trials" 248
The Unlimited Boundaries of Jury Persuasion 248

Chapter 12: Communicating More Effectively with the Judge 249
Examine Your Goals 249
There Is No Magic Formula for Persuading Judges 250
Judges Are People Too 251
Know the Judge's Reputation 253
Using Personal Knowledge about the Judge 254
Strategically Arrange the Order of Motions 255
Respect the Court's Time Constraints 256
Accept Bad Rulings 257
Facing a Hostile Judge: A Two-Step Approach 257
Public Communication Exchanges with the Court 259

Chapter 13: Using Trial Consultants 261
When Do You Really Need a Trial Consultant? 261
Three Selection Considerations 262
1. Academic background 262
2. Experience and specialty 263
3. Magic potion claims 264
Protecting the Confidentiality of a Consultant's Work 264
Common Trial Consulting Services 265
1. Small group research 265
2. Witness preparation 267
3. Jury selection preparation and assistance 268
4. Survey research 269
5. Post-trial juror interviews 271
Be a Bit Skeptical about Research Findings 272
Introduce Your Consultant to the Judge and Jurors 273
Referring to an Opponent's Trial Consultant 274
What Do You Have a Right to Expect from a Trial Consultant? 275
About the Authors 277
Index 279

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