Sun Tzu in The Art of War said:
“It is said that if you know your enemies and know yourself, you will not be imperiled in a hundred battles”
Hopefully your legal practice bears little resemblance to a battlefield (except after the Christmas party), but Sun Tzu had a good point. Strategic “victory” is far more likely with your knowledge of the other participant.
Persuasion in Romance
Remember our budding romantic Michael from Part 1? He knew Jane’s ring size and preferred type. He took her to their original meeting place, and he knew enough to create a special experience to put her in a position where the outcome he wanted was more likely.
Bob, however, was oblivious to Mary’s obviously stressful job. He failed to identify her bad mood when she got home, and her cut finger. Bob was too busy in his own world to have taken the time to consider Mary’s perspective in the process.
I used our couples as an example for this series because I wanted to make it clear that persuasion is not always a battle, despite me opening with a quote from Art of War. Sometimes it is “the other side”, but persuasion is more about getting the other participant to want what you want. To that end, viewing it as a contest is more likely to polarise the participants than it is to unite them.
Put another way: Offence makes people play defence. Persuasion puts everyone on the same page.
Persuasion in Legal Practice
Persuasion does not take place in a vacuum, and generally nor does legal practice.
Your client is a person. The judge is a person. The lawyer opposite you at the table is a person. Each has a history, a perspective, a point of view. In order to understand how best to persuade them you need to do your best to understand that perspective.
That is easier said than done, of course.
With a client you have an opportunity to understand their background and their motivation. You can ask questions to allow you to properly understand. If it comes to persuading a client, you should be on easy street in terms of understanding their perspective on matters. The only way you can’t, is if you don’t bother trying or your relationship is so poor that they don’t trust you enough to share honestly. Either way it’s not a great sign.
So what about the attorney on the “other side” (I don’t use that phrase in order to assume a contentious matter). Despite many of us trying hard to avoid it (with notable exceptions, some of whom recently appeared during the Super Bowl), lawyers have reputations. Perhaps they are aggressive, passive, intellectual or emotional? Are they a trusted advisor to their clients? Do they have a reputation for brash decisions, considered approaches, sneaky dealings?
These factors all allow you to consider strategy. Is your best avenue of persuasion to get the lawyer on board first, or perhaps it’s better to side step the lawyer and have your client contact theirs to get the deal across the line.
Persuading judges is more complex when it comes to this area. Clearly, judicial decisions will generally fall where the findings of fact and law require, absent some miscarriage of discretion or decision.
I hasten to say that I am not suggesting judges decide cases on anything but their genuine view of the law as it applies.
However, to ignore the persuasive abilities of the advocate in Court would be a disservice to talented advocates. The quality of the advocate involves, in part, an understanding of the content and manner of argument which, put to a particular Judge in a particular way, will be most well understood, assimilated, and accepted. It is a not a question of tricks or games, but of communicating the message in the best way.
For example, a message delivered one way to Judge A might be effective, but be less persuasive when it comes to Judge B. Judge A might take comfort in an appellate decision from Court X, but less so from Court Y. It is that kind of knowledge which, although hard to come by, can greatly assist your advocacy in Court. Experienced advocates will start to obtain this knowledge over the years – if you aren’t one already, hopefully you know some who might be able to give you a bit of a leg up in this area.
So Do your Research
So before your next foray into the world of persuasion, take a few minutes to do your research. Read a little, use Google, ask a colleague. It’s not always going to get you ahead, but might give you some context that you didn’t already have. Use that context to your advantage and your client’s in what you say, how you say it, and your approach to the situation.
How to Be Persuasive Series
This post is part of a series on how to be persuasive. Here are the links to the entire series: