“Words are, in my not-so-humble opinion, our most inexhaustible source of magic”
Harry Potter & The Philosopher’s Stone
For many years the marketing and sales industry has researched communication as it relates to sales and persuasion. Psychologists have been involved in studies about words, language and their significance in communication as well. Other communication interests have done the same. For example, Neural Linguistic Programming (NLP) is a method of communication techniques and skills which attaches significance to words and phrases. These studies have found that some words and phrases have more significance in persuasion and communication than others. Here are some that have been found to be important in persuasion.
- Because: This word has been described as having the power to motivate compliance. In fact, research has demonstrated that the likelihood of getting people to do the things you asked can be substantially increased by using this one simple word in your request: “because.” One study in this regard involved professor Ellen Langer, a professor of psychology at Harvard, who conducted an experiment that demonstrated this fact. She had students, participating in her study, ask to cut in front of a line of people waiting to use a copy machine. She gave them different words to use in asking to cut in front in to determine which were the most persuasive. The request that used the word “because” had a significantly higher agreement than those that did not use the word. There was a 60% compliance without using “because” but, a 93% compliance when the word was used. What is particularly interesting is that it made little difference what reason was offered so long as “because” was used.
In our trial work we need to remember the importance of always offering a reason for what we are asking to be done. In our jury selection it isn’t enough to ask jurors to take a requested action. It is important that we also give them a reason why they should do so. In cross examination we shouldn’t assume the jurors understood our point. It’s often important to add the reason. For example, “That’s because, Mr. Witness, anything else would be dishonest and unfair. In summation we should always give and the jury a reason for what we ask them to. If we want to someone to do something tell them why and use “because” when you do.
- Imagine: This is a very powerful word and is often referred to in psychology as a “trance” word. That’s because when we ask someone to imagine something the process involves suspending the conscious mind to explore the idea in a sort of momentary trance state of mind. This results in the rational mind’s critical evaluation not functioning at that moment and the subconscious mind being accessed directly. The subconscious mind does not distinguish between real and imagined ideas or visions. When someone imagines something, they create an impactful reality in the subconscious mind. Word like “imagine” have that capacity.
For example, `when we ask jurors to imagine the ways in which a verdict in favor of your client will confer benefit not just on the client but everyone and the community, we activate their subconscious mind with that idea or image. When we ask jurors to imagine what our health care would be like if we didn’t have standards of care that are enforced, we trigger a reaction that doesn’t involve rational analysis, but rather a picture or concept in our subconscious mind. For that reason, imagine is a magic word in communication because it allows direct access to the subconscious mind. Other words and phrases which have a similar effect and invite the subconscious mind to consider or visualize include these.
Just pretend: “Just pretend, for a minute, you were there & saw this take place”
- What’s it like when: “What’s it like when your doctor says you need surgery?”
- What would it be like if: “What would it be like if doctor did something like this?”
- Suppose: “Suppose, for a moment, you were faced with a decision like this.”
- Remember: “Can you remember a time when you were confined to bed?”
- How would it feel: “How would feel to be told there is no cure & no hope?”
However, we need to be careful, in using these phrases, in jury argument, to avoid violating any rule involving a “golden rule” argument.
3. The right to.. Frank Luntz, in his book Words That Work has pointed out that Americans have always believed in the concept of their “rights.” We all have a variety of different ideas about what these rights are, but we believe no one can take them away from us for any reason. Furthermore, when something is a right, it’s not just nice, it’s essential. Equally important is the ability to exercise the right and take control and power. Beginning with the nation’s founding, Americans have been committed to the concept of “rights.” The idea of having rights as become part of American culture. The idea that there is a right to a job, to a livable wage, to healthcare, to privacy and on and on. “Rights” are not simply policy but something which cannot be taken away from us. In tort law, we have the right not to be injured and if injured we have the right to be compensated fully for all harm done. Jurors have the right to expect witnesses to testify honestly and for lawyers to be trustworthy as well as credible. This phrase has a power that involves basic beliefs and values on the part of jurors.
4. Control We all have a need to feel like we are in control of our situations and our lives. When we feel we are not in control we feel threatened. A sense of being in control makes us less anxious and more confident. When we suggest our control over someone else, the normal response, for the other person, is to take a defensive position. We should make the other person feel like they are free to make any decision proper to them and are in control of their decision. Acknowledging the power of the other person to control their decisions encourages a more compliant attitude.
Acknowledging the power of the jury is something Gerry Spence has frequently done during final summation, He has often told jurors they are in control and they have all the power to decide the case. He has used the analogy of the jurors having the power to write a check for any amount they want. He empowers them to bring in a verdict he has recommended by giving them the power to do it. This idea is also illustrated in the movie Verdict Paul Newman. As the plaintiff lawyer in a medical malpractice case, he tells the jury that they are in control. He says: “Today you are the law. You ARE the law. Not some book, not the lawyers, not a marble statue or the trappings of the court. Today you are the law.”
That’s why when we argue our position to the judge we avoid telling the judge he or she has no choice but to find in our favor on an issue. That only produces a defiant attitude. Instead, we encourage the judge to do the right thing because they are in total control. We do the same with juries. We know that when we tell someone they have no choice; human nature causes a reaction against being controlled by someone else. Instead, we acknowledge the power of the court to make any ruling they wish but offer the reason why they should rule in your favor. These are examples of empowering other people to do what you are asking them to do.