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A version of this article first appeared in Leader's Product Liability Law and Strategy
Jury Persuasion in Products Liability Cases:
A Litigation Psychologist's Approach
in two parts
by Amy Singer, Ph.D.
In the first part of this article, published in the [month year] edition of Leader's Product Liability Law and Strategy, I detailed a number of valuable courtroom persuasion tools and techniques attorneys can employ to influence jurors in products liability cases - the use of rhetorical questions, expectancy statements, double-binds, analogies, metaphors, presenting the case thematically and through story-telling, and so on. When used properly, such rhetorical devices and approaches can affect jurors on both an intellectual (conscious) and an emotional (subconscious) level to react positively to the attorney's trial arguments.
I will now present additional sophisticated courtroom presentation techniques that primarily target a juror's mental processes so he or she becomes strongly pre-disposed psychologically to reach a favorable verdict. These techniques involve utilizing neurolinguistic programming (NLP) to influence jurors. This tried and true methodology - long used by psychologists, psychiatrists, therapists, and related professionals - enables attorneys to persuade jurors by nothing less than mapping their decision-making faculties.
Neurolinguistic programming is based on the premise that all mental activity, whether conscious or unconscious, is the result of neurological processes taking place in the brain. Communications techniques that are devised and developed with this principle in mind can prove immensely powerful in persuading others. The way this works is simple and direct: information communicated through the use of NLP techniques essentially bypasses a person's standard mental processing to travel laser-like to his or her subconscious instead.
Since such information is received subconsciously, it does not undergo the usual filtering and evaluative processes normally associated with other received mental data. Instead, the information is, in effect, instantaneously (and automatically) validated and then stored in the appropriate cognitive banks. The means by which standardized trial information is communicated to jurors can be likened to a messenger attempting to secure entry through numerous bolted and locked doors, all manned by vigilant and suspicious sentries. But when it comes to trial information communicated with the aid of neurolinguistic programming, the doors are all unlocked and open, and the sentries all asleep. All the messenger need do is effortlessly step inside.
People are most affected by subconscious psychological appeals
Influencing an individual's subconscious mental processes is always decidedly more powerful than influencing his or her conscious level of thought. Consciousness, according to noted author and scholar Joseph Campbell, is a secondary organ that must subordinate and serve the body, and the most basic body functions, including the subconscious.
Adolf Hitler was not a powerful orator because he cogently presented the most rational arguments to his audiences. His success as a public speaker was due instead to his ability to employ stirring tone, cadence, sweeping gestures, pregnant pauses, and other rhetorical/dramatical flourishes in a masterful manner to literally mesmerize his listeners. By the end of a Hitler performance, those in the audience might not be able to re-present his contemptible ideas in any satisfying manner intellectually; but this would in no way diminish the raw emotional power of these noxious notions with the listeners.
The world's great orators have always focused on the subconscious mental processes of their audience members - and not their conscious perceptions - to move them to adopt particular courses of action. (It is not at all ironic that most have done so quite unconsciously!)
An extremely effective NLP technique attorneys can use in the courtroom involves the "classic-conditioning" of jurors at a subconscious level during the trial. "Classically-conditioning" jurors is not to be confused with the often employed practice of trying to "condition" jurors during voir dire. This approach involves employing voir dire questions to attempt to baldly maneuver jurors so as to get them to pre-commit to a desired point of view - "If I am able to successfully prove ______________, you understand you will then be required to determine the case in favor of my client, don't you?"
This wrongheaded "conditioning" approach is disliked by jurors, who almost always see right through it. (Judges don't like it either.) Jurors resent being forced to agree to one-sided conditions regarding how they must decide the case prior to actual courtroom presentations. Most will dig in their heels as a result. It is no surprise that such ham-handed juror "conditioning" seldom works.
"Classic-conditioning" jurors is a far more subtle yet infinitely more effective approach. It involves conditioned (Pavlovian) responses. In Pavlov's celebrated experiments, a bell would ring at the same time that test subjects (dogs) were being fed. It was not long before the ringing of the bell alone would cause the dogs to salivate - the famous "conditioned" response. By using a similar "classic-conditioning" approach, jurors can also quickly be taught to unconsciously react as if on cue to an unspoken message that travels directly to their subconscious minds.
The "classic-conditioning" of individuals in no way represents a flaky or hocus-pocus ritual. Indeed, this proven process has been widely used for years by respected therapists, behavior modification counselors, and similar professionals to persuade and influence their clients. It is simple to implement yet guaranteed to positively impact jurors if handled correctly.
Here's how it works
The practitioner utilizes a highly specific and easily discernible action or gesture (termed a positive behavioral anchor) every time he or she references the case's most compelling and positive fact (pivotal point). Let's say the case's pivotal point is that the defendant, a manufacturer, went to extra special lengths to inform customers regarding the safe use of the company's product. Every time the attorney discusses this vital defense fact, he or she makes sure to simultaneously employ the same specific and clearly perceived gesture or action.
The gesture could be touching the lips, grabbing the hands together, grasping a chin, bowing the head, or knotting a tie. It is essential that the gesture appear natural and unrehearsed, and it must be done clearly and unambiguously so it can be easily noticed by the jurors within the full range of their peripheral vision.
Thanks to regular repetition, the gesture or action will quickly become strongly associated with the attorney's most telling point - the manufacturer did everything but send the customers smoke signals regarding the safe use of the product. Soon the gesture-stimulus alone will automatically retrieve this highly positive defense point in the consciousness of each and every juror. This means the attorney can put the jurors instantaneously in touch with this compelling defense message at any point throughout the trial by simply repeating the gesture-stimulus. The autonomic nervous system response among jurors will spontaneously take place like clockwork!
Be careful not to extinguish or over-generalize
Attorneys need to understand that the stimulus-response mechanism will become immediately vitiated if the pivotal point is referenced to the jurors without the accompanying gesture; or if it is over-generalized, that is, used while introducing other specific trial information that is different from the pivotal point.
The attorney should plan to employ the stimulus-response mechanism on an extremely selective basis throughout the trial. I recommend doing so only when retrieval of the case's pivotal point in the minds of the jurors will accomplish the most advantage. (Some superb times to retrieve this memory would be during a troubling cross-examination by the other side of a favorable witness, or at the most dramatic point during opposing counsel's summation.)
Altered state of consciousness among jurors
The attorney should realize that, by utilizing the gesture-stimulus, he or she is creating a temporary altered state of consciousness in the minds of the jurors that is similar in many ways to hypnosis. (It is important for practitioners to understand that hypnosis and similar altered states of consciousness make use of a completely natural mind-set commonly experienced at various times, such as while running, driving, staring at the sea or sky, or listening to music.)
A valuable side benefit
In addition to firmly locking the case's key point in the jurors' minds, this classic-conditioning process provides an enormous side benefit: the altered state of consciousness created among jurors reduces and even sometimes replaces the normal feelings of anxiety that will be eating away at them as they attempt to evaluate conflicting evidence, witness statements, and trial arguments. Eliminating this confusion and anxiety in the jurors' minds through substitution of the case's pivotal point will, of course, be of tremendous benefit to the practitioner, and the successful disposition of his or her products liability case.
Spatial anchoring of the gesture-stimulus
To psychologically reinforce the gravitas of the gesture-stimulus in the minds of jurors it is helpful to employ it whenever possible by standing in certain key "power" locations in the courtroom - for example, next to the American flag, if one is displayed, or near the judge's bench. Again, the key is to positively reinforce your case's pivotal point by clearly associating it in the minds of jurors with prestigious iconic courtroom elements.
Collapsing opposing counsel's anchor
Because NLP is such a potent persuasive tool, it is not at all unlikely that opposing counsel may try to employ it against you in some future trial. If you sense that your trial opponent is attempting to anchor his or her own key case message in the minds of jurors, this can be defeated. To do so, you must determine precisely how the message is being anchored. What specific gesture is being used by the attorney when he or she discusses the other side's key trial message? Also watch for changes in tone of voice, spatial manipulation (see immediately above), or other potential reinforcements.
All that is then required to collapse the opposing anchor is to move to the same courtroom location and clearly reference the opposing counsel's key point to the jurors without employing the necessary gesture-stimulus, with a differing tone of voice, and/or in some other appropriate way that stands in marked contrast to opposing counsel's presentation. This should extinguish the gesture-stimulus effect that was so carefully constructed by opposing counsel in the minds of the jurors.
NLP - singularly valuable tool for the courtroom
Great orators intuitively grasped the principles of neurolinguistic programming thousands of years before the discipline was ever developed. In our advanced technocratic age behavioral science has fully detailed this fascinating methodology's amazing capabilities for practical use. NLP can be employed by knowledgeable practitioners to persuade, convince, and influence jurors in the strongest possible fashion by communicating directly with their subconscious minds - the special kingdoms where their emotions reside.
Remember: jurors employ emotions to decide the case, then selectively line up the evidence and other case information to authenticate their emotional reactions intellectually. NLP enables you to communicate with the jurors at the primal subconscious level where their ruling emotions are formed.
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Amy Singer, Ph.D., trial consultant, is a nationally recognized authority in the field of litigation psychology, and an expert regarding the psychology of jurors and juries and the dynamics of a jury's deliberations and decision-making processes. Dr. Singer is the founder and president of Trial Consultants Inc. (jury research and trial preparation), Litigation Consultants Inc. (a litigation think tank) and the Institute for Settlement Sciences (settlement intelligence services), all headquartered in Fort Lauderdale, Florida. Telephone: (954) 525-9663. Mail: JuryDoctor@aol.com.