This article was published in the Spring 2015 edition of the Oregon State Bar's Litigation Journal.
Many believe that Cicero was one of the finest trial lawyers who ever lived. Cicero published six principles of persuasion, the first and foremost of which recognized the need to “move the mind and the heart” of the person or of the audience that you are trying to persuade. In other words, in order to persuade, you need to provide not only logic (appealing to the mind) but also emotion (appealing to the heart). Your call to action should be both reasonable and emotionally compelling.
So how does one move the hearts of judges? Of a panel of arbiters? Of 14 jurors, including 2 alternates?
1. Verbal Analogy
We know as trial lawyers that one of our objectives is to boil down our case into a simple theme and to be able to explain our case in a single sentence. This is a skill that requires practice, energy, and thoughtfulness. For example, Michael Tigar (who defended Terry Nichols in the federally prosecuted Oklahoma bombing case) summed up his defense of Nichols in a single sentence:
“Terry Nichols was building a life, not a bomb.”
Tigar’s skill in creating a simple theme that was easy to remember may have had a lot to do with Terry Nichols’s receiving a life sentence rather than death like his coconspirator, Timothy McVey.
The masters, however, encourage us not only to reduce our case into a simple theme and explain our client’s position in a single sentence but to reduce it to a verbal analogy. A verbal analogy is simply explaining our case using a simple, everyday occurrence that everyone can understand. The masters not only make the verbal analogy understandable but often enhance it with an “emotional anchor.” This can be done by using poetry or an excerpt from literature, history, or the Bible. For whatever reason, when we explain our case in terms of a verbal analogy that strikes a chord of familiarity through the use of a recognizable excerpt from literature, it creates a subliminal emotional impact.
The best trial lawyers realize that they can achieve Cicero’s objective of moving the mind and the heart of the fact-finder by not only creating a logically compelling case but summarizing it with a verbal analogy from literature that makes it memorable and compelling.
For instance:
- “You never know how sweet the water is until the well goes dry.” (A possible verbal analogy for a personal-injury case.)
- “A man’s word is his bond.” (A possible verbal analogy for a breach-of-contract case.)
- “When the feeding bin is empty, horses begin biting each other.” (A possible verbal analogy for a plaintiff against cross-claiming defendants.)
The best trial lawyers often regularly read great literature (poetry, proverbs, and famous quotations), equipping them, through the magic of a verbal analogy, to move not only the minds but also the hearts of those whom they are attempting to persuade.
2. Visual Analogy
An equally powerful means of emotional persuasion is the visual analogy: a simple word picture or demonstration showing that the logic you have applied to the evidence applies to the physics of everyday life and is consistent with common sense and experience.
A visual analogy can be created by a word picture drawn from experience as a youngster.
“When I was a kid, I used to like to make peanut butter and sugar sandwiches for myself. I’d take a fresh piece of white Wonder Bread. I’d dig a butter knife deep into the soft goo of the peanut butter, spread the peanut butter on the bread, and then sprinkle it with sugar.
“By the time my mother got home, I had eaten the sandwich. I had put everything away. And yet she always knew when I’d had a peanut butter and sugar sandwich. How did she know?
“As a youngster, I never could figure out how she knew. Today, I realize that it was the sugar granules. Try as I might to be careful, I would inevitably spill some sugar granules on the counter or on the floor. Those few granules made my activity just as obvious as if I had left the bread, knife, peanut butter jar, and sugar bowl on the counter.
“The evidence in this case is applied in the same way. The defendant did not sign a letter saying that he was guilty. The defendant did not come before you and admit that he had caused damage and should be liable. But the circumstantial evidence, just like the granules of sugar, make the defendant’s liability obvious, undeniable, and unavoidable.”
Visual analogies can also be created by simple physical items that are available in a courtroom. For instance, in a recent case, defendants argued that their clients met the standard of care if the water-resistant barrier on the exterior surfaces of the building exposed to bad weather was 99 percent complete. After all (it was argued), the construction had occurred in a small bedroom community where subcontractors are held to a lower standard.
A simple styrofoam cup can demonstrate the error of such an argument by way of visual analogy. Take a pencil and poke a hole in the styrofoam cup. Then argue:
“Defendants claim that the standard of care in placing building paper on buildings in this rural community is to use it on 99 percent of the exterior walls. Stop and think about that.
“This is not a game of horseshoes. Close doesn’t count; it isn’t enough.
“Take, for instance, this simple styrofoam cup. I poke a small hole in it with a pointed end of a pencil. It is now not only 99 percent complete but probably 99.9 percent complete. And yet, what’s going to happen when I fill the cup with water?
“The standard of care cannot be ‘if the job is 99 percent done, it is good enough.’ Just like the styrofoam cup, defendants’ arguments don’t hold water.”
Visual analogies can also be used to impeach a witness based on time or distance. Often, when testifying about how much time went by before an accident occurred, witnesses exaggerate or miscalculate how long “20 seconds can be.” A skillful trial lawyer can demonstrate how long 20 seconds can be by simply forcing the jury to listen and sit still in silence for 20 seconds. In the courtroom, 20 seconds of silence can seem like an eternity.
3. Observations
Most of us went to good law schools, worked hard, and got good grades. Our backgrounds arm us to come up with logically persuasive arguments for trial.
But the masters realize, as Cicero did, that logic needs to be combined with emotion to reach the highest level of persuasion. Verbal analogies and visual analogies are powerful tools in reaching this level. Consider creating an inventory of proverbs, poems, and quotations to use as verbal analogies in your cases. Consider whether your case or some aspect of it can be reduced to a common, everyday experience that you can share with the jury through a demonstration or word picture.
In my experience, those who succeed stand out from the rest of us.
