The following is an excerpt from “The Winning Argument,” a book published by the ABA Section of Litigation and co-authored by Paul Mark Sandler, Ronald Waicukauski, and JoAnne Epps.
All of us, to one degree or another, continually appeal to the emotions of our listeners. Some people’s emotional instincts are more fully developed; a few can even read people like a book and know intuitively how to respond. Such person’s may be perceived as “smooth operators” or, in the current vernacular, as possessing “emotional intelligence.”
Those who are not so blessed must make a concerted effort to watch and listen for the emotional responses of our listeners. Some scholars now recognize that people who understand and are sensitive to the emotional dimensions of life possess a capability that may be more important to success than traditional intelligence. In fact, relying upon emotions to make an important decision can be perfectly rational. How else does a jury assess the value of lost love, care, and affection in a wrongful death case or express community outrage through punitive damages when a defendant’s conduct is abhorrent?
When you argue, be alert not only to what your audience may be thinking but also to what they are feeling. As St. Augustine remarked, “I think I have accomplished something not when I hear them applauding, but when I see them weeping.”
In the famous trial of Lizzie Borden, the defense attorney, George D. Robinson, was reportedly not the equal of the prosecutor in eloquence or book learning. Nonetheless, he succeeded in gaining an acquittal for his client at least in part because in his final speech to the jury, “He kept in mind not only the logic of facts and of events, but the way the jury could be relied upon to feel,” writes Richard E. Rubenstein in Great Courtroom Battles (1973)
Restraint
To be effective, especially in the legal arena, an appeal to emotion should not be heavy-handed. It should be presented with subtlety and restraint.
In the midst of a hard-fought trial, it is tempting to use hyperbolic, provocative, or pejorative language to try to incite a jury. Sometimes this will work; more often it will backfire. If you have a particularly sympathetic case involving, for example, the death of a mother of small children, you may be tempted to describe intimate details about her life: how on the eve of her death, she tucked her children into bed and kissed them good night. If you go too far with details that have little to do with the issues in the case, however, the jury may react negatively to what they could perceive to be an attempt to manipulate their emotions.
Be especially careful in appellate court, where involving emotion must be even more subtle. At the outset of the appellate oral argument in a recent case, plaintiff’s counsel introduced his client and advised the court that the client’s dress was related to the injuries he suffered as a result of the explosion at issue. The court rebuked counsel in its written opinion for this “highly improper” behavior: “First, there was nothing inappropriate about Mr. Staley’s appearance or his attire. Second, we would remind counsel that this court’s responsibility and dusty is to determine the critical legal issues before us. To the extent that counsel sought to influence the court by his comments, we admonish his behavior.” [L.K.I. Holdings, Inc. v. Tyner, 658 N.E. 2d 111(Ind. App. 1995)]
Understatement
Frequently, understatement can generate the emotion you desire. Showing a “day in the life” film depicting the plaintiff’s circumscribed physical abilities can influence jurors to react sympathetically. Speaking too much after showing the film could actually undermine the impact of the presentation, so keep remarks brief afterward. Similarly, having your client show a scar can be more effective than simply describing it.
You also can use nonverbal communication to appeal to the emotional aspects of your listener’s decision-making process. Talking quietly during a sad moment or walking toward your client while giving him an understanding smile can evoke emotion. In a stirring moment, try increasing the intensity of your voice.
In arguing matters of law in any court, primacy should be given to the logical reasons supporting your position. Appeals to emotions are important, but they are most effective when they flow from the nature of the subject matter, not from a performance or provocative language. Dispassionate description sometimes arouses intense emotion most effectively.
As Lord Chesterfield told his son, if you can “engage people’s pride, love, pity, ambition (or whichever is their prevailing passion) on your side, you need not fear what their reason can do against you.”