Principles Of Persuasion
Good lawyers have long known that factors other than facts, influence jurors’ decisions.
Trials are “an exercise in persuasion for the lawyers,” Professor Joel Cooper of Princeton University has said.
Jurors and judges will ultimately “trust one communicator over another.”
1. The Principle of Reciprocity: We tend to want to keep short accounts with others in our circle of
relationships – preferring to borrow our money from banks rather than friends, choosing to carry our own weight
before we’ll hand it off to another – particularly among those we consider our friends.
Because of this element of social training our tendency is to want to repay a gift given,
whether we like or perceive that we need the gift or not. Judges and juries apply the ingrained principle of
reciprocity to parties in a trial if one has successfully created the impression of a burden or debt owed.
In a breach of contract suit, for example, you will want to demonstrate that the defendant
injured your business by not fulfilling his side of the bargain. You as the plaintiff, endured risk and the loss
of hard-earned earnest money and the judge will feel that you have
been wronged and the defendant must make it right for not fulfilling his promises.
“I pay my debts,” you want the juror to feel. “Why shouldn’t this defendant pay his?”
2. The Principle of Comparison: When two items or pieces of evidence are compared closely, the
differences between them will become more evident and pronounced the closer the items are positioned, whether
physically, or in your argument.
Comparing your loss of work time and job opportunities and transportation – say, in an auto
accident claim involving a driver who ran a stop sign and clipped the rear quarter or your work truck – against
your opponent’s relatively minor cost to repair his front end, (and make sure you mention that he didn’t even
get ticketed for running the stop sign) and you have a contrasting loss that can help establish you burden in
the minds of the jury and judge and arouse their desire to award reciprocal damages in your favor.
Be careful that your comparison draws the sought after contrast without conveying unintended
messages or appearing nit-picky or petty.
The Principle of Friendship Bonds and Peer
Expectations: We all
have peer relationships in various spheres of influence in our lives, ranging outward in intensity usually
from family, friends, neighbors, coworkers, teammates and fellow members in the inner circles, to community
members and fellow citizens in the outer circles.
Friends and family occupy our most intimate, central circle of relationships. The principle of
friendship describes our willingness to do almost anything for those who we believe have our best interests in
mind, those we consider our friends. It is this principle that motivates soldiers to heroic acts of valor on the
battlefield, not that they are patriots or zealous believers in the flag or the cause, but more often it is
simple that the man or woman next to them in the foxhole is a friend.
Many psychologists believe we will generally – like water seeking its own level – seek to
fulfill the expectations, whether for good or not, of those in our community of relationships whom we respect.
If someone expects us to perform in a certain way, or produce certain results, we are motivated to meet their
As a litigant, these elements are probably more
at work in a jury’s decision-making process than you might be aware, perhaps less so with a judge. Penetrate the
circles of relationship and connect with the judge and jury. Without coming out and saying so, appeal to them as
friends and respected peers.
4. The Principle of Association and Endorsement: We tend to like people who are like ourselves. We want to relate with others
who are similar to us, with whom we feel a measure of kindred spirit. We may spend hours of additional leisure
time with friends from work or school or church. We tend to empathize more easily with people who are like us
socially, who are positioned like us economically, who believe as we do spiritually and morally. These
similarities open channels of communication and avenues of persuasion.
Two authors writing in Trial Diplomacy Journal report a study of 600 jurors after reaching
verdicts in multiple cases. Interestingly, every single juror – 600 out of 600 – reported voting to decide the
case in favor of the litigant or side they “liked” more.
We also want to associate with those we respect. Advertisers have known for ages that
consumers will buy products from celebrities because they like and respect them. Every year, billions of dollars
in goods are sold in this country carrying the endorsements of people ranging from Charles Schwab to Michael
Jordan. We seek affirmation from those we respect and we tend to react positively to the arguments of those we
respect and admire.
5. The Principle of Scarcity: This principle holds that people are more easily influenced by
information or evidence that is scarce or in not readily available. Product promoters lace their ads with
messages reinforcing the implied value of their goods with words like “limited offer” and “today only” or “while
Generally, jurors tend to retain more and become more attentive to the information they’re
exposed to if they believe it is scarce or they may not have access to it again. Jurors will also recall this
information more readily later. Thus the pro se should take time to stress the value of scarce information.
In a very real way, scarcity does elevate value in the marketplace – commodity traders and
futures investors understand and work through this principle every day – and certainly the “shelf life” of
information will contribute to its perceived value. It should not surprise the pro se advocate that juries award
relative value to all the evidence they see and hear based on its scarcity.
A word about juries and objections. Several studies of jurors suggest that the principle of
scarcity comes into play when litigants object to various bits of testimony or information during trial. Data
from criminal and civil cases imply that objections during trial often tended to focus the jurors’ attention
directly upon the disputed information – probably due of the principle of scarcity – especially if those
objections were accompanied by orders from the judge to disregard such information.
Jurors tend to cling to objectionable information more tightly than they otherwise would, if
the objecting advocate made no mention at all. By calling special attention to the material with a formal
protest, objecting litigants run the risk of actually highlighting information in the mind of a juror they would
rather have forgotten.
The thing to remember then about objections is that they often attract more attention than
they deflect. Picture objections like a big red pencil. Yes, they illustrate what is wrong in an ocean of
testimony, but they also underline that same information and focus attention directly upon it.