Friday, July 2, 2021
Persuading other people to adopt your point of view, whether in a courtroom, a faculty meeting, a debate, or any other context, depends on how you deliver your argument. Below are tips to maximize the persuasive value of an argument.
1. Persuasion is about perception
In many instances, people do not decide whether to accept a particular argument based on facts or science. Rather, their decision is based on their perception of you. And that perception will be influenced substantially by how you deliver your argument. The most important aspect of that delivery is confidence. If you appear confident, the audience will be more likely to agree with you, regardless of contrary facts or evidence.
Simply put, confidence is everything.
Confident advocates take a stand and are bold.
They are unequivocal.
They never get flustered.
They never act surprised.
They never say “um,” or, “I think,” or, “I’m not entirely sure.”
When they receive hostile questions, they react by stating, “I’m really glad that you asked that question.”
In short, if you win the battle of perception, you also likely win the war of persuasion.
2. Make your audience initially agree with you by connecting your argument to commonly accepted values
To win an argument at the end, you have to win at the beginning. And winning at the beginning means connecting your argument to broader values upon which nearly all people can agree. If people agree with the broader values underlying your argument, they will be more likely to accept the specific aspects of that argument. Consider the following examples of two hypothetical lawyers arguing that the First Amendment protects “hate speech”:
The First Amendment protects hate speech because the Founders believed that the right to free speech was essential to liberty and democracy. As a result, offensive, distasteful, and unpopular ideas must be tolerated to ensure that a true marketplace of ideas exists and that people are not threatened by government censorship. Therefore, hate speech, however one might define such speech, must be tolerated.
Ok, whatever. Now consider this example:
Speech that degrades, denigrates, and demeans other people can be terribly hurtful. I’m sure that we can all recall a moment in our lives when another person said something demeaning to us and remember the pain that it caused. And I’m sure we wish that all people realized the harm that words can cause and respected the dignity of every human being. At the same time, most people don’t want the government to become the speech police. They don’t want the government to arbitrarily decide what speech is considered “hate speech,” and what speech is not, thus giving it the power to censor whatever ideas it deems unpopular. If the government had that power, liberty, autonomy, and democracy would be threatened. For these reasons, as much as we may despise those who degrade, denigrate, and demean others, the answer is to fight back by using our free speech rights, not to give the government carte blanche to dictate what we can and cannot say.
The second example appeals to values that most reasonable people accept and view as essential to a free society. And when they agree with these broader values, they are likely to accept the argument that hate speech must receive First Amendment protection.
Simply put, if they agree with you at the beginning, they are more likely to agree with you at the end.
3. It’s ok to be a little unprofessional in the right circumstances
Advocates who are authentic, likable, relatable, and passionate are more likely to sway an audience. And in some instances, authenticity means ‘being real’ and dispensing with formalities when making an argument. In short, sometimes it’s ok to be a little unprofessional. Why? Because it conveys your passion. It shows that you believe in your argument.
Consider the following examples involving two hypothetical appellate advocates who are arguing to the New Jersey Supreme Court the issue of whether defense counsel's performance at trial violated the Sixth Amendment:
In Strickland v. Washington, the United States Supreme Court held that a Sixth Amendment violation occurs where counsel’s performance is negligent and where such negligence results in prejudice, meaning that, but for counsel’s negligence, the outcome of the trial would have been different. This case is a perfect example of ineffective assistance of counsel. Counsel slept during parts of the trial. Counsel admitted to having a cocaine addiction and to being an alcoholic. Yet, the appellate court held that this conduct was harmless error because my client confessed to the crime. Now my client will be incarcerated for twenty-five years for voluntary manslaughter. This decision was erroneous and should be reversed.
Yeah, right. Based on that argument, the appellate court’s decision isn’t going to be reversed. Now consider this example:
My client was represented by counsel who, during the trial, was addicted to and snorting cocaine. He was represented by counsel who smelled of alcohol. And due to the hangovers caused by his frequent cocaine and alcohol binges, counsel fell asleep during the trial, including during the prosecution’s examination of critical witnesses. It should come as no surprise that anyone represented by a drug-addicted, alcoholic, and sleeping lawyer would be convicted. But it should come as a shock that such a conviction would be upheld on appeal. The appellate court didn’t give a shit about this blatant denial of due process. The appellate court didn’t give a shit about the drugs, the booze, and the frequent naps during the trial. To the court, this was harmless error. If that is harmless, it’s difficult to know what would be harmful.
The second example is real. It is raw. It is authentic.
Of course, being a little unprofessional doesn’t give you a license to be a jerk. Never be disrespectful or attack personally your adversary or the lower court. And keep the four-letter words to a minimum. But there are instances in which your passion and authenticity can be best expressed by dispensing with the formalities and being real.
4. Reframe your opponent’s argument
Don’t allow your opponents to frame issues on their terms. Reframe the issues to support your argument and reinforce the commonly accepted values on which they are based. For example, consider the above example regarding ineffective assistance of counsel and how the hypothetical attorney in Example 2 reframes the argument to appeal to basic and commonly accepted values.
The state acknowledges that defense counsel had a drug and alcohol problem and that defense counsel slept during portions of the trial. But that is not the relevant inquiry. The question is whether defense counsel’s performance prejudiced the defendant, such that the outcome of the trial would have been different had counsel performed differently. The answer to that question is no. The conviction should be affirmed.
The state is asking this court to hold that the Sixth Amendment is not violated when defense counsel snorted cocaine during the trial. The state is asking this court to hold that the Sixth Amendment is not violated when defense counsel is an alcoholic. The state is asking this court to hold that the Sixth Amendment is not violated when defense counsel falls asleep during a trial and renders the defendant helpless in the legal process. The state is asking this court to hold that attorneys who are addicted to cocaine and alcohol, and who decide to sleep rather than aggressively advocate for their clients, satisfies the Sixth Amendment’s promise of effective assistance of counsel. To accept the state’s argument is to say that the Sixth Amendment has no meaning whatsoever.
Yikes. I wouldn’t want to be a justice on the New Jersey Supreme Court in such a case.
5. Explain with specificity why your position is good policy and will lead to fair and just results
It’s not sufficient that your proposed rule or policy is workable based on the facts of a specific case. The most persuasive arguments demonstrate that such a rule or policy would be workable, fair, and just in future cases and in a variety of contexts.
To achieve this objective, you should do three things. First, make sure that your position is supported by facts and empirical data. Second, acknowledge weaknesses in your position and explain how your rule or proposal addresses such weaknesses and leads to just results. Third, to demonstrate its efficacy and fairness, give hypothetical examples explaining how your rule or proposal would be applied in other contexts.
After all, facts don’t always win arguments.
The law doesn’t always win arguments.
Be confident. Be authentic.