Monday, September 22, 2008

Higdon on Nonverbal Persuasion in Oral Argument to Judges

Or, would Governor Palin please stop shaking her head "no" when she is emphasizing a rightly-positive point about her candidacy?  Somewhat related to that query (but not an example he uses), today Michael Higdon at UNLV (a colleague of our own Nancy Rapoport, I note, and shown below right) has posted to SSRN his article, Oral Argument and Impression Management: Harnessing the Power of Nonverbal Persuasion for a Judicial Audience.  It is forthcoming in the Kansas Law Review, and has this abstract:

In essence, my article utilizes social science research on the topic of nonverbal communication in order to advance our understanding of what makes for effective oral advocacy. Currently, there are no articles that 1) give a comprehensive summary of the Faculty_michaelhigdon relevant social science research within the area of nonverbal persuasion and 2) apply that research specifically to the area of oral argument. My article attempts to fill both of these needs.

As you will see in the article, nonverbal communication goes well beyond simple hand gestures, but also encompasses how a person speaks, how a person dresses, a person's facial expressivity, and even such things as a person's posture and head position. Furthermore, social science research reveals that both these and other nonverbal cues can greatly impact the perceived credibility and persuasiveness of a speaker. Not only that, but in many instances, listeners tend to place even more reliance on what a speaker is saying nonverbally than the actual substance of the speaker's presentation. Given that attorneys should seek to maximize their persuasive potential during oral argument, knowledge of this research and these various principles is essential. Section III of my article explores this research.

Of course, what makes nonverbal persuasion somewhat different for oral advocates comes from the fact that the attorney is directing his argument not to a jury, but to a judge. As my article details, one of the ways a speaker nonverbally increases his ability to persuade is by employing nonverbal cues that enhance the speaker's perceived dominance. When appearing before a judge, however, the attorney must keep in mind that 1) it is the judge who is most dominant and 2) the judge expects nonverbal cues from the attorney that the attorney understands this hierarchy. Again using social science research, Section IV of my article explores this balancing act between dominance and submission and offers concrete advice on how oral advocates can navigate that somewhat thorny issue.

[Alan Childress]

http://lawprofessors.typepad.com/legal_profession/2008/09/higdon-on-nonve.html

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