Wednesday, March 6, 2019
Like a lot of advocacy professors, I'm an avid consumer of social-science literature on persuasion, decision-making, and pedagogy. And I'm a fan of efforts by law professors to apply this literature to what advocates do. Sure, we've got to be humble and cautious: I and many of the law professors with interest in this area aren't trained scientists or statisticians, and stuff like the Social Sciences Replication Project and the hubbub over power posing offer healthy reminders that it's possible (even easy, sometimes) for folks trained in the right disciplines to get out over their skies. As Ted Becker points out, we in the persuasion business don't really know much about what really persuades judges. But much of the good, humble, cautious work helps us at least start down the path of sorting out techniques that work from techniques that we adopt just because they're the way we do things. There is a wealth of interesting work being done in this area related to persuasive writing and legal reasoning: Kathy Stanchi's body of work on psychology and persuasion is remarkable; Lucy Jewel's piece on old-school rhetoric and new-school cognitive science is a revelation; Steven Winter's work broke fascinating ground in knitting together cognitive science and legal reasoning. I could mention dozens of other scholars here: exciting things are happening.
We don't have a similar volume, as yet, of scholarship linking social science to oral advocacy. Still: I'd like to devote a few posts to highlighting a couple of pieces that I find particularly useful in refining the advice I give to advocates and in polishing my own performances.
I think it's fair to call the first a classic in the field: Michael Higdon's Oral Argument and Impression Management: Harnessing the Power of Nonverbal Persuasion for a Judicial Audience, published in the Kansas Law Review in 2009. Professor Higdon offers a rich, comprehensive overview of research into the seven basic codes of nonverbal communication: (1) kinesics (i.e., what speakers do with their bodies); (2) physical appearance (i.e., what speakers look like); (3) vocalics (i.e., what speakers sound like); (4) haptics (i.e., how speakers physically touch an audience member); (5) proxemics (i.e., how speakers use physical space); (6) environment and artifacts (i.e., how speakers use instruments and their environment); and (7) chronemics (i.e., how speakers manages time). And he thoughtfully applies that research to what lawyers do in appellate oral argument.
I find Higdon's piece particularly useful in sorting out advice on things like the use of gestures. Quite often, beginning appellate advocates will do stuff with their hands that distracts judges. So they'll get categorical advice: don't talk with your hands. And they take that advice ... and promptly get told by the next set of judges not to be so stiff and nervous. Higdon's piece details research spanning several decades that makes it clear that any "don't use your hands" advice is flatly wrong: gestures are essential to effective in-person communication generally, and they're especially vital to persuasion. But there's a catch: only those gestures that are "synchronized with and supportive of the vocal/verbal stream" enhance comprehension and persuasion. The lesson that emerges: advocates should use purposeful gestures that match and support the points they make verbally, but avoid gestures that simply accompany the verbal stream. So use the hands to help you make a point, but don't let your hands flap around randomly to accompany your talk.
Higdon's points on speed of delivery (somewhat fast is actually good, so long as it doesn't flatten out a speaker's pitch and tone) and on managing the judges' dominance are similarly illuminating. If it is read as widely as it should be, the generations of appellate advocates will tilt their heads eight degrees to the right (see p. 643). And win.