Psychological Tips to Win Over Your Clients, Juries, and Judges
This article is by Ian Hu, claims prevention & practicePRO counsel at LAWPRO.
Effectively persuading a potential new client, a jury, or an interviewer – and being able to do it time and again – requires a solid understanding of how people make decisions. Persuasion traditionally relies on three techniques, namely: to speak the truth (logos), be credible (ethos), and move your audience emotionally (pathos). Unconscious (cognitive) biases can interfere with or bolster these techniques. With the right tools, your clients will be more likely to listen to you, take your recommendations, and refer you to more clients. This in turn will help make your practice more pleasurable and reduce your claims risk. Use these eight tips to make unconscious biases work for you.
Similarity bias
We tend to like and trust those who are similar to us. An elderly jury will tend to like an elderly lawyer. A client with a strong accent will tend to like a lawyer with the same accent. An interviewer who loves to golf will tend to like an interviewee who loves to golf.
If you find you are nothing like your client, this is an obstacle to communicating well with him or her. Finding even one way to be like your client will make it more likely that you will be heard. This is about cultural competence – understanding where others are coming from and finding a way to connect. See this LAWPRO magazine article for further insight on cultural competence.
1. Highlight similarities. Build rapport with your audience by understanding who they are, and emphasizing what you have in common. While you cannot change fundamental characteristics like your age and race, you can highlight other similarities and thereby make yourself more likeable.
2. Mirror your audience. Body positioning, pace and tone of speech, and even breathing rate have been found to help create bonds. Often this occurs naturally. We see this in our daily lives when we meet couples who finish each other’s sentences. Exact mirroring may look strange when done overtly. You can achieve mirroring simply by changing your behaviour so that you act and talk a little more like your audience. A wholesale change is not called for.
3. Speak the way your audience speaks. A highly sophisticated audience will appreciate complex concepts and advanced vocabulary. A simpler audience will not. Meet your audience at their level. A marker of speaking fluently is to use idioms familiar to the audience. If your audience hears what is familiar to them, they will see you as one of them and trust you.
Compliment your audience. As Dale Carnegie notes in How to Win Friends and Influence People, a genuine compliment delivered with sincerity can go a long way to smoothing over criticisms, improving on first impressions, and making your audience more comfortable. This can range anywhere from a person’s appearance to something interesting your audience has said(which also shows you’re listening).
Authority bias
We tend to listen to those who we see as authoritative. The more authoritative you are, the more credible you are. It helps that as a lawyer you will already be seen as an authority. Your clients come to you because they do not have the knowledge, ability and experience you have.
Being authoritative will also help if you have a client that is a bully. If a bully sees you as the authority, he or she will give you the benefit of the doubt and will be more likely to follow your recommendations.
5. Be attractive. This does not mean you need a beauty makeover. Present yourself in the best possible way by dressing professionally and staying well-groomed. A prominent trial lawyer said to me that the jury looks at your face all day – your hair, eyes and teeth should look as good as possible.
6. Speak confidently & sit and stand tall. This is all about positioning yourself as an authority. Clients put their trust in you and need to know you can take care of their problems. If you do not speak with confidence, they will lose confidence in you. This does not mean that you need to have all the answers – you don’t know everything and you can say you don’t know. Simply deliver the news confidently and with a plan.
Scarcity bias
“Act now, supplies are limited!” Scarcity excites desire. A case in point is the growth of Facebook®, which began as a service available only for Harvard University students. Eventually it was made available only to university students in Boston, then the Ivy League, then all university students, and then the public. The scarcity of the product made it more desirable.
7. Teach your client the law. Your knowledge is a scarce commodity. Give clients helpful information they otherwise would not know. Feed them facts they care about, and teach them about the law. Make it clear that this is expert knowledge or knowledge they otherwise would not have access to. One of the top complaints clients have of their lawyers is that they are not properly advised of the law. Properly teaching your client the law has the benefit of reducing your claims risk.
Anchoring Bias
Anchoring occurs when we rely on one piece of information over others. This often occurs with the first piece of information, such as a first offer. The value of a second offer can seem like a big concession relative to a high first offer (the anchor), which may make it easier to settle somewhere in the middle. By contrast, anchoring at the wrong place can make it seem like the negotiation is not occurring in good faith.
8. Carefully choose the first piece of information you offer. The first important piece of information you give your client will anchor the client’s expectations. After building rapport with my clients I would often begin by asking them what was their most important concern. I could then address this most important concern and thereby set expectations for the life of the file. The anchor I set could be the value of a case, or the prospects of recovery, or legal knowledge. If I set a value to a case, I invariably set out an extremely wide range to communicate the fact that anything can happen at trial. Whatever key information is communicated to the client, make sure you set reasonable expectations with the very first thing you say.
Unconscious biases are opportunities for persuasion
Good communication is about listening to and understanding your audience. These tips are only as effective as your understanding. Where does your client come from? What language is he or she used to talking in? What is your client’s body language telling you? Pay attention to these cues and find a way in to your clients’ hearts and minds.
Hello Dan,
Long time, etc …
I am curious about at least one aspect of what Ian wrote. As you undoubtedly know, the article is formally about rhetoric, about persuasion; that is, about the ability to convince a listener to accept and act o what you say rather than whatever it is that somebody else says. Rhetorical persuasion isn’t limited to truth.
You, I suspect, know me well enough to have at least some idea of where I’m going to go.
Given that advocates no longer have absolute immunity for things done and said in court, then
(hypothetically, of course) if a very skilled in rhetoric advocate VSA (Very Skilled Advocate) is able to convince, legally of course, a judge or jury to accept a view of what happened which at least probably isn’t what the judge or jury would have accepted if his or opponent (NASA, Not As Skilled Advocate, or MCA, Merely Competent Advocate) had been equally skilled, or even competently skilled in rhetoric, where what happened was the VSA was, through skilled, legal, not even “whacking” cross-examination, able to convince the judge or jury that the evidence of the other side’s key witnesses should not be believed then,
a. will the hypothetical standard types of lawyers errors and omissions policies provide defence and indemnity coverage in respect of a claim by the losing party against the VSA on alleging
(1) the VSA knew or ought to have known that the VSA’s rhetorical skills were so much better than the NASA’s or MCA’s skills that
(i) the the VSA knew or ought to have known that the VSA’s clients version would be accepted and
(ii) the VSA knew or ought to have known that the other side’s version was more likely to be true than the VSA’s client?
Or
b. a claim by the losing party against the losing party’s NASA or MCA on the basis that that advocate knew or ought to have known that his or her skills rhetorical skills were such that the other side’s story would prevail over the losing party’s version where it is probable that it would not if … etc
Thinking about the definition of what is an “offence” or any other term used to define what acts are covered by the policy, will the hypothetical e & o insurer take the position that there’s a coverage issue here if, in fact, the VSA knew that his or her skills were better, since then the VSA is intending the result that occurred? Which has to be understood as, factually at least, injury.
Now, I’m going to suggest that both of these actions would probably be dismissed, on at least social policy grounds, at first instance or on first appeal in most countries with developed enough legal systems – so I’ll concede that includes Ontario as it was when I left on December 31, 2012.
But, legal fees can be expensive.
And, of course, that VSA type just mentioned isn’t unique. There will be others as good or better.
The image I’d like you to see is called the Worm Ouroboros. You’ll find a version here. https://s-media-cache-ak0.pinimg.com/236x/53/ba/ec/53baeccdff07ff1c31ff4dfc25f903be.jpg.
Less literary versions are here: https://www.cesarsway.com/sites/newcesarsway/files/d6/images/features/2012/March/dogchasingtailonwooddeck.jpg
and here: https://rtfitch.files.wordpress.com/2014/10/cranialrectalentanglement.jpg?w=258&h=300
I realize you’ll say to me that, of course, both advocates are entitled to coverage under a properly written e & o policy. Because they were doing what they’re entitled to do under the legal system in issue. And because the losing party could have gone to better counsel if the losing party had wanted to pay for better counsel, right? And it’s not the VSAs “fault” that the judge or jury were convinced the VSA’s skills rather than the NASA or MCA’s skills. That’s the losing party’s unfortunate luck of the draw. Another judge might have been more skilled than the judge the losing party had. The hypothetical you will say that, won’t he?
I’m sure that that the issue of truth fits in here somewhere doesn’t it?
Just sayin’, as John Stewart used to say.
This is all just rhetorical so you shouldn’t answer the questions.
Happy New Year and my best wishes to you, your family, and your colleagues for 2017 and the years to come.
David