Citation: 29 Law & Psychol. Rev. 301 2005
Content downloaded/printed from HeinOnline (http://heinonline.org)Sat Feb 28 01:42:52 2015
-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
-- To obtain permission to use this article beyond the scope of your HeinOnline license, please use:
https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0098-5961
THE SCIENCE OF PERSUASION: AN EXPLORATION OF
ADVOCACY AND THE SCIENCE BEHIND THE ART OFPERSUASION IN THE COURTROOM
Persuasion has been defined as the "act of influencing the minds ofothers by arguments or reasons, by appeals to both feeling and intellect; itis the art of leading another man's will to a particular choice, or course ofconduct."' In the context of a trial, persuasion is the organization of legalarguments and evidence within the framework of court procedures in away likely to cause the jury to make a certain decision.2 For decades, trialattorneys have acted as amateur psychologists; through intuition and ex-perience, trial attorneys have developed techniques of persuasion in aneffort to be more effective in the courtroom.3 These amateur techniqueshave led to a more scientific approach to jury persuasion. One expert ob-served that, "all in all, [trial consultants] help lawyers position their casesto juries in much the same way you would sell a bar of soap . . . ."4 For-mer Supreme Court Justice Tom Clark has suggested that attorneys payattention to communications research in order to understand the kinds oftechniques that influence a jury.
Since the 1970s, volumes of scientific literature have been publishedon trial advocacy and the psychological principles associated with jurypersuasion; 6 continuing legal education seminars are offered in this area as
1. William C. Costopoulos, Persuasion in the Courtroom, 10 DUQ. L. REV. 384 (1972), re-printed in PSYCHOLOGY & PERSUASION IN ADVOCACY (Louis N. Massery II, ed., Association of TrialLawyers of America, 1978).
2. Steven Lubet, Persuasion at Trail, 21 AM. J. TRIAL ADVOC. 325, 342 (1997).3. Victor Gold, Covert Advocacy. Reflections on the Use of Psychological Persuasion Tech-
niques in the Courtroom, 65 N.C. L. REV. 481, 481 (1987); Thomas Sannito, Psychological Court-room Strategies, TRIAL DIPL. J., Summer 1981, at 30.
4. Gold, supra note 3, at 481 (citing Dancoff, H-idden Persuaders ofthe Courtroom, BARRISTER,Winter 1982, at 8, 17).
5. Daniel G. Linz & Steven Penrod, Increasing Attorney Persuasiveness in the Courtroom, 8LAW & PSYCHOL. REV. 1, 2 (1984).
6. See generally Michael Owen Miller & Thomas A. Mauet, The Psychology of Jury Persua-sion, 22 AM. J. TRIAL ADvOC. 549 (1999); ROBERT L. HABUSH, ART OF ADVOCACY: CROSSEXAMINATION OF NON-MEDICAL EXPERTS (1986); ROBERTO ARON ET AL., TRIAL COMMUNICATIONSKILLS (2004) [hereinafter COMMUNICATION]; DAVID B. BAUM, ART OF ADVOCACY: PREPARATIONOF THE CASE (1986); RICHARD A. GIVENS, ART OF PLEADING A CAUSE (2004); RUSS M. HERMAN,COURTROOM PERSUASION: WINNING WITH ART, DRAMA AND SCIENCE (1997); THE PSYCHOLOGY OFTHE COURTROOM, Ed. Norbert L. Kerr & Rober M. Bray (1982); THOMAS SANNITO & PETER J.McGOVERN, COURTROOM PSYCHOLOGY FOR TRIAL LAWYERS (1985); L. TIMOTHY PERRIN ET AL.,THE ART & SCIENCE OF TRIAL ADVOCACY (2003).
Law & Psychology Review
well.7 Although psychologists are employed in cases where the economicor political issues warrant such an expense, attorneys have increasinglyapplied these scientific techniques on their own.8 Just as professionals inother fields eagerly employ the latest and greatest technologies, attorneyshave also eagerly embraced social-scientific principles of persuasion in aneffort to gain a competitive edge in the courtroom.9 With these powerfulnew tools comes responsibility; some experts have raised concerns overpossible unethical use of scientific techniques of persuasion.10 Expertswarn that persuasive techniques could lead to an erosion of the judicialsystem in the United States."
II. TECHNIQUES OF PERSUASION
It has been said that trial advocacy "requires the lawyer to engage in apractical application of psychological knowledge, and it is the obligationof every lawyer to succeed in doing so., 12 Through anecdotal stories pre-sented in trial advocacy literature and personal experiences, this sectiondiscusses various advocacy techniques and explores the scientific basisbehind them.
A. Jury Selection Techniques
For the trial attorney, persuasion starts with jury selection. 3 Psy-chologists suggest that jury selection be used as an opportunity to deter-mine which jurors are susceptible to the attorney's influence and whichmight be biased in favor of a particular attorney's argument. 14 For decadesattorneys have tried to get into the minds of potential jurors in an effort topick the best jury for the case. Social scientists, over the last several dec-ades, have used their expertise in a quest to discover the perfect juror; as aresult, volumes have been written on how to select the best jury for a par-
7. See generally Mastering the fundamentals of advocacy seminar, ALABAMA BAR INSTITUTEFOR CONTINUING EDUCATION (2001); Jury selection: who to strike and how to do it presented in adynamic format, ALABAMA BAR INSTITUTE FOR CONTINUING EDUCATION (2001).
8. Gold, supra note 3, at 482.9. Gold, supra note 3, at 482-483.
10. See generally Gold, supra note 3.11. Id.12. ROBERTO ARON & JONATHAN L. ROSNER, How TO PREPARE WITNESSES FOR TRIAL 2d.
3.17 (1998) [hereinafter WITNESSES].13. Lubet, supra note 2, at 337 ("In a very real sense, [a lawyer is] on trial from the first moment
[he] steps in front of the (jury] .... The judge and the jury will constantly evaluate and reevaluate [anattorney's] credibility [while assessing the attorney's] behavior, appearance, bearing and conduct.").Generally, voir dire is an attorney's first opportunity to use the persuasive techniques discussed in thisarticle. Although an attorney is not arguing his case during voire dire and will not likely use tech-niques such as primacy and recency, clothing recommendations and techniques focused on buildingcredibility with the jury are applicable during voir dire.
14. SANNITO & McGOVERN, supra note 6, 2.5.
Science of Persuasion
ticular case.' 5 This section does not purport to be a compendium of knowl-edge on scientific jury selection; rather, it serves to help the reader under-stand that persuasion in the courtroom starts with picking the right jury.
Many attorneys begin the voir dire process with stereotypes and gen-eral assumptions about groups of people in an effort to distill the mountainof uncertainties posed by the jury pool. For example, in personal injurycases, attorneys often assume that more liberally minded people will tendto favor the plaintiff and more conservative minded people will tend tofavor the defense. 16 From the plaintiff's perspective, attorneys generallydo not consider middle to upper class white men and women, especiallybusiness owners, as "good" jurors for personal injury suits. 7 ClarenceDarrow once weighed in on jury selection saying, "[i]f a Presbyterianenters the jury box, carefully rolls up his umbrella, and calmly and criti-cally sits down, let him go. He is as cold as the grave; he knows rightfrom wrong, although he seldom finds anything right .... Get rid of him.. . before he contaminates the others."18 Another factor commonly thoughtto have bearing on jurors' attitudes and predispositions is body shape. Itwas generally thought that taller, skinnier people were conservative, andlarger more obese persons were friendlier and more likely to award dam-ages. 19 Prior to scientific jury selection, these are the types of "hit ormiss" generalizations and stereotyping that occurred. 20 The process of juryselection has been an especially uncertain endeavor; although social scien-tists have not completely eliminated uncertainty, scientific research haslikely decreased the uncertainty surrounding jury selection.2'
Attorneys have been known to consult U.S. Census Bureau informa-tion on the demographics of a particular venue to determine the chances of
15. See generally JEFFEREY T. FREDERICK, AM. BAR ASS'N, MASTERING VOIR DIRE AND JURYSELECTION: GAINING AN EDGE IN QUESTIONING AND SELECTING A JURY (1995); ANN FAGANGINGER, JURY SELECTION IN CIVIL AND CRIMINAL TRIALS (2004); JAMES J. GOBERT & WALTER E.JORDAN, JURY SELECTION: THE LAW, ART, AND SCIENCE OF SELECTING A JURY (2005); WARDWAGNER, JR., ART OF ADVOCACY: JURY SELECTION (1986).
16. In the author's experience many attorneys make assumptions about jurors based on the jurors'political preferences. In many cases, lawyers make assumptions about a juror's political preferencemerely on the physical appearance of the juror. For example, men with long hair, tattoos or ear rings,are sometimes assumed to be politically liberal.
17. WAGNER, supra note 15, 1.04.18. Janeen Kerper, The Art and Ethics of Jury Selection, 24 AM. J. TRIAL ADVOC. 1, 1 (2000)
(citing Clarence Darrow, Selecting a Jury, ESQUIRE MAG. (1936)).19. WAGNER, supra note 15, 1.04[g].20. See DONALD E. VINSON, JURY PERSUASION: PSYCHOLOGICAL STRATEGIES AND TRIAL
TECHNIQUES 132-34 (1993). Vinson mentions various jury selection myths such as "women with thinlips will help a plaintiff ... highly educated jurors are better in complex cases . . . [and] widowsaward high punitive damages." Id. He suggests that these myths lead to errors in judgment. Id Theauthor is aware of a lawsuit where a female plaintiff broke her pelvis in nine places as a result of acollision with a tractor trailer truck. Because of the severity of her injuries she was unable to ever beintimate with her husband. The plaintiffs attorney in that case thought he needed as many youngmarried persons on the jury as possible.
21. See sources cited supra note 15.
Law & Psychology Review
success.22 Attorneys have also photographed the homes of potential jurors,taking note of the condition of the lawn, type of vehicles present andwhether there are toys on the lawn, or whether outdoor equipment such asboats and motorcycles are present. 23 Attorneys have also considered in-formation such as where potential jurors work and attend -religious ser-vices. All of these factors are believed to be helpful in picking the rightjury.
Social scientists have developed a number of techniques generally re-ferred to as "scientific" or "systematic" jury selection in an effort to cre-ate some sense of certainty out of a wildly uncertain endeavor. 25 The mostwell known technique associated with scientific jury selection is the demo-graphic survey. 26 Such surveys seek to discover the attitudes among vari-ous groups in the community toward certain issues.27 Social scientists usethese surveys to develop a profile of jurors with favorable and unfavorablebiases.28 Demographic information about potential jurors can be found onthe jury list itself; often it will contain information such as race, sex, ageand home address. Information may also be obtained through private in-vestigators, voter registration lists, credit reports and membership lists.
It is noted that an attorney should know the age, sex, occupation, maritalstatus, spouse's occupation, and number of children of all potential jurorsbefore any meaningful analysis can be done.3
Trial simulations and focus groups are also employed by social scien-tists as a method of evaluating issues that will arise at trial.31 A trial simu-lation is a kind of dress rehearsal and miniature trial.32 The major issues ofthe trial are presented to the mock jury and the jury's reaction to the issuesis measured. Trial simulation can be helpful in measuring the effectivenessof the attorney, expert witnesses and evidence and in determining desir-able and undesirable jurors.33
After having done demographic surveys and other research, psycholo-gists suggest that in an effort to illicit further responses from potentialjurors during voir dire, the attorney should reinforce any initial responses
22. See United States Census Bureau, available at www.census.gov (last visited Mar. 19, 2005).23. In his discussions with members of the Bar, the author has learned that some attorneys em-
ploy this practice.24. According to attorneys with whom the author has spoken, the attorneys who investigate jurors
in this way find such information quite relevant and helpful during the jury selection process.25. VALERIE P. HANS & NEIL VIDMAR, Jury Selection, in THE PSYCHOLOGY OF THE
COURTROOM, at 68-72 (N. Kerr & R. Bray eds., 1982).26. Gold, supra note 3, at 493.27. Id.28. HANS & VIDMAR, supra note 25, at 68-72.29. V. HALE STARR & MARK MCCORMICK, JURY SELECTION 6.02 (2001).30. Id.31. FREDERICK, supra note 15, at 152.32. STARR, supra note 29, 7.01.33. Id.
Science of Persuasion
he receives. 34 This technique, referred to as deconditioning, can be used toreinforce the idea that it is acceptable for the potential jurors to voice theiropinions even if the opinions are negative.35 Public speaking is the numberone fear in the United States.36 When prospective jurors speak out duringvoir dire the attorney must commend the answer and encourage other po-tential jurors to speak up as well.3 An abrasive or combative response to anegative answer might discourage other potential jurors from speakingup.
One voir dire tactic is designed to increase the credibility of the attor-ney by sacrificing a favorable juror.39 This tactic can be used in situationswhere a juror plainly states that he or she is biased in favor of a particularside. This tactic suggests that even though the potential juror is biased infavor of a particular side and will most likely be struck by the opposingside, the attorney for whom the prospective juror is in favor, may gaincredibility and increase his perceived fairness if he strikes the juror ratherthan allowing the opposing attorney to strike the biased juror. 40 For exam-ple, this display of fairness-"Mr. Smith, I appreciate your support of ourside but with your permission I would like to excuse you because youwould be biased in my favor and would not be able to look at both sides ofthe argument fairly"--could increase the attorneys trustworthiness in theeyes of the remaining jurors.4
B. What is Said, How it is Said, and What You Look LikeWhen You Say it.
Having selected a favorable jury, an attorney presents the evidenceand his arguments in a way that he hopes will persuade the jury that inlight of the evidence, his interpretation of the event or act in question iscorrect. Attorneys have long used personal charisma and skillful orationsto persuade juries. Although attorneys have developed their own persua-sive techniques as a result of experience, social scientists have been ex-ploring the sci...