The Language of PersuasionAuthor(s): Theodore I. KoskoffSource: Litigation, Vol. 3, No. 4, THE ART OF PERSUASION (Summer 1977), pp. 24-27Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29758343 .

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The Language of Persuasion

by Theodore I. Koskoff

Hollow words, I deem, are the worst of ills.

?Aeschylus

With daily transcripts of courtroom proceedings running to more than 150 pages, it looks as though many lawyers are out to corner the market on hollow words. It is easy enough to do, maybe just as easy to rationalize: Trials are intensive, demanding exercises in applied psychology. Lawyers have to be concerned with the total

image they project to juries. They have to arrest and maintain the attention of the jury, influence and control their clients to present themselves as attractively as

possible, and work, throughout the trial, to use the basic

techniques of nonverbal communication in an effort to convince the jury that justice is on their side. How can

they worry about the niceties of word selection and order, the techniques of dramatic attention or the beauty and compass of language?

Even with a case structured to maintain interest, the

jury does not listen with unabated attention to what the

lawyers say. Attention requires enormous concentration. While the average juror may be "listening/' he is often not comprehending what is said. He is listening but not

perceiving, because his thoughts are in some kind of stream of consciousness.

The housewife is thinking about the kids crossing the street, the banker is thinking about what is going on back at the bank, and the grandmother is wondering whether the pot roast is burning. You are lucky if you have a significant percentage of the jury following what you say at any given moment.

That should tell you that you have to develop effective ways to get attention with the words you speak, the order in which you say them and the timing you use.

Silence is one of the best ways to get attention.

Suppose a laywer is in the middle of final argument and

Mr. Koskoff, a Bridgeport, Connecticut lawyer, is President, Roscoe Pound-American Trial Lawyers Foundation and Chairman of the National College of Advocacy.

notices a juror in the back row whose eyes start to flutter closed. Does he raise his voice; change the subject; grab the jury rail and go on? No. He stops. Waits. Says nothing. The tension of the situation rises until all eyes are fixed on him unblinkingly.

At that moment the lawyer has the jury's total attention. The next thing he says or does will be remembered. It is a technique that is so effective it must be used with the restraint that only good taste can

bring?once, twice, perhaps three times in the course of a long trial. It works so well that the lawyer who uses it must take special care that whatever follows justifies the

expectation that was created. Then, more than ever, the lawyer needs the power of

the language of persuasion; words that carry impact, judiciously selected and in the right order, coupled with the use of effective nonverbal behavior that can communicate and persuade.

Choose Words Carefully It starts with the choice of words. Carefully worded

questions can influence both the answers and the way they are heard by the jury.

Dr. Elizabeth F. Loftus, a research psychologist at the

University of Washington, makes the point: "I have found that the questions asked about an event influence the way a witness remembers what he saw. Changing even one word in a single question can systematically alter an eyewitness account." Reconstructing Memory: The Incredible Eyewitness, Psychology Today, Vol. 8, No. 1, p. 116 (1974).

Let me give you a few examples of both Dr. Loftus's and my own to illustrate the point. Suppose you ask, "Did you see the car with the broken headlight?" Phrasing the question that way will result in a

significantly higher number of people who will say they saw a car with a broken headlight than if you simply ask, "Did you see the car with a broken headlight?"

It shows why plaintiffs lawyers should never use the word "accident." "What happened to you in the

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accident?" is a defense question. Plaintiffs lawyers should use "crash," "wreck," or "smash-up." Why? Just because it sounds more dramatic?

In an examination of responses to these questions, a

significant number of people estimated higher speeds when the words "wreck" or "smash-up" were used than in response to the word "accident." The words you choose to help create a picture in the mind of the person being questioned and influence the range of answers they instinctively feel is plausible.

Think about simple automobile personal injury cases. In intersectional collision cases, lawyers always tend to

get tied up in what I call the numbers game. That goes something like this: "How far was car number one from the intersection before he saw car number two; and how far then was car number two. . . .'" Intent on fixing the witnesses' estimates, the lawyers fail to act as advocates in framing their questions.

If you want the distance to be greater, use the words, "how far?" If you want the distance to be less, use the words, "how near?" It can make a difference.

In experiments on the accuracy of guessing measure?

ments, people were asked to make an intelligent numeri? cal guess to each question. Then they were asked either of two questions such as, "How tall is the basketball

player?" or "How short is the basketball player?" The results were striking. On the average, subjects

who were asked how tall the basketball player was

guessed 79 inches. On the other hand, subjects who were asked how short he was guessed 69 inches?the difference of nearly a foot.

Perhaps you think this principle applies only to estimates based on casual, fleeting observation. Sur?

prisingly, it works even on matters drawn directly from

people's personal lives. Dr. Loftus once asked ques? tions about headache products. One group of people was asked whether they had tried one, two, or three different headache products. A second group was asked whether they had tried one, five or ten different headache remedies. Once again, the results were impressive. The

group that was asked whether they had tried one, two, or three headache remedies responded that they had tried, on the average, 3.3 different products. The one, five, ten

group, on the other hand, claimed an average of 5.2 different remedies.

'How Often?9 "Do you get headaches frequently? If so, how often?"

Or, "Do you get headaches occasionally? If so, how often?" The "frequently" subjects reported an average of 2.2 headaches a week. The "occasionally" group reported an average of only 0.7 a week.

The lesson could not be more clear. Completely neutral questions are rare indeed. Questions which will influence the answers?at least statistically?can be framed so they will not run afoul of the rule against leading. If the words in the question are going to influence the answers, they they should be carefully thought out in advance. If they cannot be put so they influence in your favor, at least they should not work

against you. Certainly if a witness is committed to a particular

distance, weight or measure, the chances are that even if the direct or cross-examiner wants to change it by altering the words from far to near, the witness will hold his ground. But if you continue to use the word near, it has been my experience that you can usually get the witness to modify the figure to some extent.

The value of this technique does not end with the

particular answer you get. How the question is framed also has an influence on how the jury views the answer.

Asking how fast a car was travelling plants the idea, "fast," in the jury's mind. And that idea can continue to work for you throughout the trial. To put it another way, you can get double duty out of carefully worded

questions. Asking properly worded questions is not something

that comes like a flash in the middle of trial. It takes a

good deal of pre-courtroom cerebration. There are no

geniuses in the courtroom?only drudges in the office. Take this principle and apply it to jury voir dire. How

you ask questions depends on what you are trying to

accomplish. Jury selection has many functions, and the

range of questions you will be permitted to ask depends not only on the state you are in and the judge you are

before, but whether the case is civil or criminal or in state or federal court. So assume, for a moment, a criminal case in a jurisdiction that permits extensive jury voir dire. The lawyer may be trying to develop challenges for cause,

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discover which jurors to challenge peremptorily or

predispose the jurors in his favor. If he goes about it well, he will be doing all three at some time during this voir dire examination.

If the lawyer asks, "You don't believe, do you, that

just because a person is arrested, he is guilty of a crime?" the great bulk of jurors will answer, "No." This may be

superficially reassuring, but does not really tell the

lawyer anything about the juror. Suppose he asks this instead: "What do you think it

means if someone is arrested? Do you feel it means there is a good chance he is guilty of some crime?" That is the kind of question that does not signal to the juror what the official answer is supposed to be, and the lawyer is much more likely to find out something useful about the juror's attitudes.

Must Change Form On the other hand, if the lawyer shifts gears, he must

change the form of his questions as well. "Is there anyone here who would have any difficulty following the basic American belief that a man is innocent until proven guilty? I gather by your silence that you all agree with that. Do you all agree, then, that if the state fails to prove John Morgan guilty?fails to prove him guilty beyond a reasonable doubt?that you would return a verdict of 'not guilty'?" It is unlikely that such questions will reveal a juror who does not believe in the presumption of innocence, because they are designed to predispose the

jury to that principle, to listen to the evidence with that

thought in mind. And the lawyer learns nothing from the answer.

Persuasive language goes beyond the details of

wording questions, a sort of micro-study of persuasive techniques; it extends to framing presentations such as

opening statements and final arguments. An opening statement that starts out, "The evidence

will show this and the evidence will show that" will not do. Merely stringing facts together is not enough. More

important is to create for the jury a picture of the case that emphasizes the things you want the jury to think about while listening to the evidence.

Suppose you have a case against a hospital. A man walked into the hospital with a pain in his shoulder. As a result ?f the claimed negligence he developed into a

quadriplegic, and worse. An opening statement that would put the jury in the best frame of mind, from your point of view, would tell them the theme of the case. It would be a word picture that would focus their attention on the most critical part of your case. Here is how it

might go:

High on the eighth floor of St. Joseph's Hospital, in room 804, is Howard Neilson. In bed is Howard Neilson, my client. Every morning at eleven o'clock, a woman comes into the room, draws a chair up to the bed, kisses him on the forehead, but he doesn't feel her. She speaks to him, but he doesn't hear her. She smooths the covers over his body, she rubs his arm, she rubs his leg, but he doesn't feel it. She looks him in the eyes, and he sees her, but he doesn't perceive her. She sits down in the chair and reads to him for an hour, but he doesn't hear her.

She gets up. She kisses him on the forehead again, and she walks out of the room.

How did Howard Neilson get that way? What could have been done to prevent it?

When you begin your opening statement in that manner, you know the jurors are ready to listen to the evidence from your point of view. They will be critical of the evidence. They will want to know what happened and what could have been done to prevent it.

Criminal cases have themes too?something criminal

lawyers with stock opening statements that deal with vague generalities tend to forget.

Take a case with an alibi defense. The lawyer might say the evidence is going to show this and the evidence is

going to show that, the evidence is even going to show that the defendant, Michael Straughn, could not be

guilty because he was watching television with some friends when the crime took place. Not very effective.

But if the lawyer creates a warm, real word picture, here is how the opening statement might begin:

Seventeen Bonnybrook Road. It was one of those

exciting nights when the Celtics and the Knicks were at each other's throats. It was one of those frequent nights when Mr. Peck, Mr. Lawson, Mr. Fabriosi and Mr. Straughn were indulging in their favorite

occupation?watching the gladiators of our time at it again on TV. It was the weekly evening of good fellowship and beer. It was an evening with friends. While this was going on, some distance away?at

1771 State Street?a tragedy was taking place. John Mullins was robbed; John Mullins was shot, and John Mullins was killed.

That is the kind of opening that would focus attention on the alibi. In a sense it removes this group of people from the crime which is charged. It means the alibi tes?

timony will have to be good; but then, as you know, a bad alibi may be worse than none at all.

Impact Phrases Persuasive language depends in part on what I call

"impact phrases," memorable groups of words that touch our basic motivations.

The late Moe Levine, a master in the art of final

argument, would sum up a wrongful death case with the words, "We are now engaged in the grisly audit of death." That is an impact phrase.

Or we might have the blond-haired child who speaks to us from the grave. If we speak of sympathy, there are tears of sympathy, cards of sympathy, visits of sympathy or wet pillows at night. In a wrongful death case, one

might talk about a father who has been lost to a family of five. "There's a sixth chair at the dining room table that's always empty," or "Who will teach his boy how to ride a bike, throw a baseball or say his prayers?"

Impact phrases can be found everywhere. From

politics, we have images such as Senator Jackson's

response to President Ford's economic plan: "It is like

moving chairs around on the Titanic," and the charge leveled at Ella Grasso when she ran for Governor of Connecticut: "Putting Ella Grasso in charge of the

treasury in the State of Connecticut is like putting Dracula in charge of the blood bank."

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The Bible is rich in images, such as these two that

speak to the value of human life: "Her price is above the

price of rubies," and "What is man that thou art mindful of him?"

Another way to help make language persuasive is to use the techniques that have been favored since time immemorial. Caesar's cadence is still commanding: "Veni, Vidi, Vici?I came, I saw, I conquered."

Churchill, a master of alliteration, used phrases such as, "We cannot fail or falter," "He was a man of light and learning," "Let us to the task, to the battle, to the toil." Those are words of persuasion.

Contrast can be arresting, as Dickens showed in the

opening lines of A Tale of Two Cities: "It was the best of times, it was the worst of times, it was the age of foolish? ness, it was the epoch of belief. . . ."

Persuasive Cliches Even cliches can be persuasive?"He had crumbled

like an old ruin"?when not used to excess. It is the art of the familiar, the value of plagiarism. We need to remember the past. When someone said to Sir Isaac Newton, "Dr. Newton, how is it that you see things so

clearly?" he responded, "I stand on the shoulders of men like Galileo." We all plagiarize from one another; we all learn from one another, and we can learn about the art of

persuasion from both the classics and modern oration. In 1965 Ossie Davis gave the oration at the funeral of

Malcolm X.

If you knew him, you know why we must honor him; Malcolm was our manhood! This was his

meaning to his people, and, in honoring him, we honor the best in ourselves. However much we may have differed with him, or with each other about him, and his value as a man, let his going from us serve only to bring us together, now.

Consigning these mortal remains to earth, the common mother of all, secure in the knowledge that what we place in the ground is no more now a

man, but a seed, which after the winter of our dis? content will come forth to lead us. And we will know him then for what he was and is, a prince, our own black shining prince who didn't hesitate to die. I begin to weep every time I read it. It was Robert Ingersoll who, perhaps for the first time,

used the "I saw him" technique. At the tomb of

Napoleon, Ingersoll said, "I saw him at Toulon, I saw him putting down the mob, I saw him at the head of the army, I saw him in Egypt, I saw him at Elba."

According to William Safire writing in The New York Times, it is a technique that has been used by politi? cians "... since at least the election of candidate James Blaine in 1876."

It can be used in many situations. In a personal injury case involving a child: "I saw this beautiful blond haired child on her way to school. I saw her crossing the street. I saw her playing with her friends and laughing as they walked home. I saw ..." It is a technique particularly adaptable to summation.

Suppose you have a case involving lawyers in which you need to dignify the role they play in society. See how the "I saw him" technique can be effective:

It was the Fourth of July, 1976. As we saw the tall

ships sail under the George Washington Bridge and our minds went back to the founding of our Repub? lic, I thought of the great lawyers of the past. Law? yers, who, as Milton said of Shakespeare, "Thou hast created in thy wonder and astonishment a

monument."

I saw him so long ago, a Philadelphian in New York, the Philadelphia lawyer at the nation's first

political trial, upholding John Peter Zenger's right to publish what he chose free from censorship or interference. His name was Andrew Hamilton, and he was a lawyer.

I saw him at the trial of Captain Preston, another

political trial, the unpopular cause and client aris?

ing out of the Boston massacre. His name was John Adams. He was a lawyer.

I saw him at that miracle in Philadelphia, the Constitutional Convention of 1787 fighting for the Bill of Rights, the credo of American freedom not

adopted until 1789. His name was James Madison. He was a lawyer.

I saw him presiding over the Supreme Court of our land, the architect of the real powers of the

Supreme Court. His name was John Marshall. He was a lawyer.

I saw him exhorting the battle cry of the Repub? lic, "Give me Liberty, or give me Death." His name

was Patrick Henry. He was a lawyer. I saw him at Gettysburg with tears in his eyes,

gaunt and morose, rededicating our country to the

principle of equal justice for all. His name was Abraham Lincoln. And he was a lawyer.

And I saw him elemental man, fighting for one cause or another in Dayton, Tennessee, preaching the legitimacy of evolution. His name was Clarence

Darrow. He was a lawyer.

I saw him speaking to us from his wheelchair, lifting our spirits, making us stronger with his in?

spirational philosophy, "The only thing we have to fear is fear itself." His name was Franklin Delano Roosevelt. And he was a lawyer.

I saw him in the Senate hearing room in Washing? ton, uttering his anguished cry for decency. His name was Joseph Welch. And he was a lawyer.

And I thought of the precious monuments they had left to their lives and of Milton's wonderful comment on Shakespeare, and I wondered what kind of monuments you and I will erect for the next hundred years. Not a monument of brick and mor?

tar, but one that will live. For only a thought lives on. And finally I thought of that marvelous admo? nition of Holmes, when almost a hundred years ago, he said, "I think that as life is action and passion, it is required of man that he should share the pas? sion and action of his time at the peril of being judged not to have lived."

Persuasive language means, in addition to everything else, a touch of eloquence. What a shame so many think that elegant speech is dead.

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