Every major discipline thinks they have a unique way of approaching problems. Research scientists have one way, engineers have another way, doctors have yet another way, economists even have their own approach.
And, of course, lawyers think they are unique.
Just do a search on “think like a lawyer” and you will get about 165 million hits.
But lawyers do have a process and that process is tightly focused on arguing a case before an objective, impartial, unemotional judge and jury.
I know, there is no such thing as an objective, impartial, unemotional judge and jury. Decisions are most often made by emotion. Logic is used after-the-fact as a rationale for the decision.
But the legal thought process does provide valuable insights into persuasive presentations and into negotiation strategy.
One of my favorite books on the topic is Lis Wiehl’s Winning Every TIme. How to Use the Skills of a Lawyer in the Trials of Your LIfe.
Despite her obvious “blue-state” bias, she provides valuable insight into the legal thinking process. She focuses on 8 key steps:
Step 1: The Theory of the Case. Know what you want. This is at the heart of this process. What is this all about? What is the problem in the environment that you want to change?
What is it you want? What do you want the result to be? If you don’t know, you won’t get it. Be very precise.
This is your chance to frame the issue. The whole debate can be won or lost right here. Try to reduce the issue to a short, memorable tag-line.
Gary Spence repeatedly used the line “If the lion got away, Kerr-McGee has to pay” to win the famous case Karen Silkwood vs. Kerr-McGee. The prosecution in the O.J. Simpson case lost track of their case and as they diverted to DNA evidence, while the defense was clearly stating, “If it (the glove) doesn’t fit, you must acquit.”
One of her best snippets of advice is to “avoid red-herrings.” While we want to arouse emotion in the audience, we want to hold ours in check. Keep focused on your theory of the case and avoid rabbit trails. “…and your little dog, too.”
Don’t get sidetracked. Know what you want.
Step 2: Voir Dire. Choose your audience.
Lawyers get to interview their jury before they present their case. You will not always have this luxury, but there are things you can do.
First, determine if the audience has real decision power or if they have influence on the ultimate decision. [Czar Nicholas II had decision power, but he was heavily influenced by his wife, who was, in turn, influenced by Rasputin.]
Does your audience have any prejudices for or against your case? Do they stand to gain or lose by their decision? Do they have any hot buttons or biases?
If you have an opportunity to interview them, think about what you will ask. Spend a lot of time listening to the answers.
Think about when you will make your case. You can often bring up your theory of the case during your questioning.
Consider the where, why, and how you will converse with the audience.
Step 3: Discovery. Gather evidence.
Do your homework. Gather the facts. Separate known facts from surmised and assumed facts. Keep away from opinions or work to change them to facts.
You can ask questions, located documents, follow leads, and solicit testimony.
You can find any negative evidence so you can mitigate it. One method is to bring it up first and minimize it.
Assess your evidence (facts) for hearsay, bias, and motive.
Then decide which evidence is most convincing and most important. Prioritize it and determine how and when you will bring it up.
Step 4: Make the Case. Present your arguments.
The opening statements are very important.
During the opening, you set the tone and present your theory of the case. You state the situation, preview the evidence, and ask for the desired outcome.
I personally like to start by saying, “I’m confused” and lay out my story, asking for their help. This defuses hostility and gets them on my side of the table, looking for a solution.
After the opening, you lay out your evidence, in the order you determined in the last step. Many try to save their strongest evidence to the last, so the impression remains.
Then summarize, emphasizing the theory of the case, the most important evidence, and ask for the desired result.
Step 5: Cross-Examination. Counter their arguments
Listen to the other side’s case.
Then do these three things to their evidence: prove their statement are not true (impeachment), expose non-truths and expose hearsay.
Don’t restate your case here. Just ask the questions that will let you make points during the closing. Keep your cool.
Then summarize the key points and ask for your desired result.
Step 6: Stay True to Your Case. Don’t chase unproductive rabbit trails.
The book lists seven deadly spins;
- Deviating from the theory of the case
- Over-promising
- Adding last minute charges
- Resorting to hearsay
- Making subjective characterizations
- Making false inferences
- Expressing uncontrolled emotion.
Step 7: Let Me Tell You a Story. People remember stories.
Make the story personal.
Stories let the audience empathize with you in a non-threatening way. They can put you in a honest, but positive, light.
They tend to bring the audience (the jury) to your side of the table.
A good story is about the people, not the problem. It is vivid and it has a beginning, middle, and end.
Step 8: The Closing Argument.
The closing argument is where you summarize your case and draw all the loose ends together.
Start with the hook and remind them of your most important evidence.
Then resolve any weakness in your case.
Highlight the empathetic elements. Here is a great place for a story.
Then justify your position and ask for the desired verdict.
Ladies And Gentlemen Of The Jury: Greatest Closing Arguments In Modern Law is a great book of closing arguments. It’s an easy read and illustrates our points.
Summary
Lawyers think funny, but with a purpose in mind. Their process can only aid in presenting your case for your cause.