Persuade Through Showing, Not Telling

A case study from my trial files.

Plaintiff was diagnosed with Type II juvenile diabetes in his teens. Despite countless admonitions from physicians, dieticians and nurses, he was non-compliant with his diet.

In his twenties, he did something illegal (I can’t remember what) and was jailed for six months. The jail's family practice physician diagnosed diabetic retinopathy for the first time. Plaintiff contended that the physician committed malpractice for not diagnosing it sooner (even though plaintiff had been followed by an ophthalmologist on the outside who had not diagnosed it). I represented the company aligned with the physician.

The jail kept records of all the snack food that plaintiff bought at the jail’s commissary during the six months he was incarcerated. He bought a lot: moon pies, pork rinds, top ramen, Kit Kats, Hershey bars, you name it. I put the commissary records into evidence. At the suggestion of a co-defendant’s lawyer, I decided to show, not tell, the jury what plaintiff had bought. The argument went to plaintiff’s contributory negligence.

I sent my paralegal out to buy every single item on plaintiff’s commissary list. It took him an entire weekend, as he had to go to multiple stores to purchase everything on the list. The junk food filled my kitchen table. I wanted the jury to see it in a familiar container so they could gain a sense of how much food this really was. I tried one of my children’s oversized, plastic lattice-worked laundry baskets. Perfect. The jury could see the junk food through the lattice work and there was so much food I could mound it on the top.

During closing argument, I put the basket mounded with junk food on a table in front of the jury. I actually staggered (unintentionally) under its weight. As I talked, I was watching a young juror in the front row who was studying to be a nutritionist. I believe this was the first time I actually saw someone’s eyes grow as big as saucers.

I could have asked the jury during my closing argument to review the commissary records, which had been marked as an exhibit. Instead, I showed them what they represented.

When you negotiate, think of ways to show what you mean. It can be a persuasive way to make your point.

Negotiation: Persuasion Through Out-Listening

Have you ever witnessed an argument when two people are talking simultaneously? Each is stating his position and airing his grievances? They’re frowning in frustration? Their voices are rising? Why? Because neither one is feeling heard. Each one feels the other side is not listening to them. This is not a recipe for persuasion. It’s a recipe for continued conflict.

Here’s a truism about human interaction. People are more able to listen once they feel they’ve been heard. They are more likely to feel heard if an authentic human connection is made.

If you want to be the most persuasive voice in a negotiation, consider what a friend of mine calls “out-listening” the other side. Just keep listening. When they feel heard, they are more able to listen to you. When they are listening, you have a golden opportunity to persuade.

Here’s a bonus. You can also use this strategy in your personal interactions. I remembered this idea recently when my teen-age daughter brought a problem to me. Rather than rushing in to fix the problem (my usual, unthinking default mode), I just kept listening. In fact, I out-listened so well that she finally asked, in a somewhat shocked voice, “Mom, don’t you have anything to say?!”

Try out-listening your spouse, significant other, children, etc. Leave a comment and let me know how it goes.

Negotiation: Persuasion Through Likeability

Lincoln, a legendary lawyer as well as president, once said, “The only lasting way to eliminate an enemy is to make him your friend.”

Professor Robert Cialdini’s seminal book, Influence: The Psychology of Persuasion, cites seven “weapons” of influence. I've previoulsy posted about one of them, reciprocity. (See links below.)

Likeability, Cialdini’s research shows, is another way in which we can influence people. It’s the key reason that when I’ve tried cases, I’ve always tried to be the nicest person in the courtroom. Jurors are human, and they are more likely to be susceptible to persuasion from someone they like.

In mediation, being the most likeable person in the mediation room can work to your client’s advantage as well. This involves “making nice,” a different mind-set than the warrior mentality often seen in litigation. This mind-set is sometimes encouraged by the client and sometimes by the milieu in which lawyers work. We need to educate our clients that the warrior mind-set they want to see is almost always counter-productive in mediation, especially in the joint session.

One of our default modes of thinking is to like people who are similar to us. Cialdini has found that similar backgrounds, similar interests and even similar dress can all increase liking. Familiarity can lead to greater liking. Therefore having more personal contact with opposing counsel before mediation is a way to increase the likelihood of persuasion through likeability at mediation. You can lay the ground work from the inception of the case.

Cialdini always provides a strategy to counter influencing behavior. For likeability, he recommends being aware of undue liking, that is, to separate the negotiator from the merits of the negotiation.

Rather than making the other side your enemy, consider making them your friends. There’s also the potential reward that you’ll like yourself better, too.

Related links:

The Rule of Reciprocation

Negotiation: Getting the Rule of Reciprocation to Work for You

Inoculate Against the Rule of Reciprocation

Congratulations to CUNY's "Make Talk Work" Video Competition Winners!

The City University of New York's Dispute Resolution Consortium has decided upon the 10 winners of its Make Talk Work International Video 2008 competition. The videos have been posted to You Tube and you can find all ten of them here. (When you get there, scroll down the list to the right and click on the videos.)

If you have ten minutes, it's lots of fun. The videos are 60 seconds each.

To see two dozen bookmarks from CUNY's Make Talk Work bookmark project, click here.

Kudos to the JAMS Foundation for funding the projects.

Persuasion in Negotiation

I have been thinking a lot about persuasion. How can lawyers in negotiations and mediations persuade the other side to enter their ballpark, or, to use jargon, the zone of possible agreement? What persuasive trial techniques can be effective at mediation? What methods of persuasion used in other contexts can transfer over to litigation?

There are many ways people can influence and persuade others, arising from many disciplines. I plan to touch on some of those methods over the course of this Summer. I hope you’ll join me.

Strategy and Negotiation Games

O.K. This will date me. I grew up playing board games.
Three games involving strategy I played were Stratego, a board game equivalent of “Capture the Flag;” Gettysburg (Avalon Hill), a more complicated game involving strategy that I played with my older brother; and, of course, Monopoly. I have to admit, though, that Monopoly was not one of my favorites. Either it took too long to play, or my brother always beat me, I can’t remember which.

Thanks to the worldwide web, I found a list of negotiation board games in an article in the Straits Times (Malaysia). You can find reviews of each, by a self-described board game geek, here. The two which sounded most interesting were Santiago and Diplomacy. Santiago is set on an island off the coast of Africa. Players bid for water to grow crops. If you can’t negotiate with the canal overseer, you lose. Diplomacy is a circa World War I game about countries in Europe. Negotiation is necessary for your country’s survival.

Here’s the 21st Century update. Linda Babcock, a Carnegie-Mellon professor whose research interest is girls and negotiation, has created an on-line negotiation game for 7 to 12 year-olds called Reign of Aquaria. Click on the game and it will begin. The picture above is from the game.

Bonus (non-strategic) game suggestion: Sorry, the best game ever for families to play together because it’s essentially a game of chance, and even the youngest member of your family can (and will) win. As the youngest member of my family, I remember it fondly from "family game" nights.

What games involving strategy or negotiation would you recommend?

Generational Differences in Negotiation

(Click on the page for a larger, legible version.)

One aspect of diversity which is sometimes overlooked is age. Phyllis Beck Kritek, in her provocative presentation at the ADRNC annual conference earlier this year, got all of us thinking about age. She included the table above in her handouts. While it focuses on age differences in how people approach their jobs, it is an insightful and useful tool to remind us that age affects how we look at the world. This is especially a good reminder for me, as my default thinking is that (of course) everyone else thinks just the way I do.

In preparing for your next negotiation, remember to think about the other side’s age and concomitant worldview. It may challenge you to prepare your arguments in a more enlightened way.

Here’s more about Phyllis Kritek’s book, Negotiating at an Uneven Table, and Lancaster’s and Stillman’s When Generations Collide.

Gender Differences in Negotiation

When Linda Babcock, a professor of economics at Carnegie-Mellon University, spoke at the ABA Dispute Resolution Section’s annual conference last April, she wove together her research, her personal experiences and her stories about negotiation in a fascinating and compelling way. Her latest research has just been published in a book she co-authored with Sara Laschever called Ask For It. Diane Levin at Mediation Channel has a great review here and Vickie Pynchon from Settle It Now Negotiation Blog posted her take on it here.

Professor Babcock argued that socialization sets up women to "not ask" for what they want, to hold back and to be modest about themselves. She provided statistics and stories which showed that women did not ask for ask for raises or other benefits for themselves with the frequency or aggressiveness that men did.

I thought that the most interesting statistic, however, was that when women executives negotiated on behalf of others (e.g., a mentee) they negotiated salaries which were 15% higher than what men executives negotiated for others. CEO’s and law firm hiring partners take note.

I’ve added Ask For It: Linda’s Blog to my blog roll (at right) and I’ve subscribed to its RSS feed.

Active Listening: AACES

AACES is the mnemonic a local community mediation organization uses to train new mediators in active listening. I spent a Saturday morning recently helping with the training.

It occurred to me that the skills we were teaching these new mediators were also skills that would be useful for lawyers in mediations in which joint sessions are held. Here’s the mnemonic:

A = Attitude
A = Acknowledge
C = Clarify
E = Empathize
S = Summarize

Attitude is how you prepare yourself (and your client) for the mediation. It’s often helpful to be respectful (Rule of Reciprocity) and open-minded (hey, you might learn something you didn’t know).

Acknowledge means showing that you are listening to the other side. You don’t have to agree with them, but you can show that you’re interested in what they are saying. You can also acknowledge by posture: good eye contact, nodding your head or leaning forward when they’re speaking, etc.

Clarify by asking the kind of open-ended questions we ask on direct examination. I know it’s more satisfying to ask, “When did you stop beating your wife?” but you might learn more by asking, “How has your relationship with your wife been working?”
Be curious. Try, “Could you tell us more about….”

Empathize by meeting people on an emotional level, showing them that you “get” where they’re coming from. You can say things like, “It sounds like you’ve been through a lot.” Or, “It seems like you’re feeling ….” While this is not something we are specifically trained to do as lawyers, it can be enormously satisfying for the other side (which will ultimately redound to your client’s benefit). It sounds counter-intuitive, but try it, you might better serve your clients by empathizing with the other side. (If your client is the type who wants an attack dog for an attorney, I recommend explaining this strategy to them first!)

Summarizing is a good way to make sure that you’ve understood the other side’s point of view. By summarizing, then asking, “Did I get that right?” you are showing the other side that you’ve listened and you are inviting them to let you know if you’ve missed anything.

Persuasion can only take place if the other side is ready to listen to you. By listening first, you’ve set the table.

By the way, if you’re skeptical about whether or not these active listening skills work, try them out on your spouse, significant other, children, other family members, etc. Let me know how it works out.