January 22, 2019

Paul Mark Sandler on Emotion in the Courtroom

An installment from Paul Mark Sandler's monthly column on trial advocacy for The Daily Record: 

As logic is a powerful instrument of persuasion, so, too, is emotion. Since ancient times, harbored feelings such as passion, anger, pity, sympathy, happiness, and even indifference have played a significant role in decision-making by both judges and juries. The objective of emotion in argument is to awaken or arouse desired feelings or sentiments in the judge or jury, and induce them to render the preferred decision.

Derivative use of emotion can be effective to confirm a conclusion you believe the judge or jury currently harbors, either from the presentation of the case or from preconceived attitudes or beliefs. Consider this closing argument by the late Moe Levine, after he established the elements of proof relating to the tragic injuries of his client, who became a paraplegic.

“Ladies and gentlemen of the jury: Good afternoon. I note we saw each other from a short distance during lunch. It was a nice lunch, despite the sobering nature of this case. You may have observed during our lunch all of us used a knife and fork. But not my client. (Silence, and then in a quiet voice he spoke.) He ate like a dog.”

Levine then sat down. The verdict was for the plaintiff.

Direct use of emotion is the essence of exhortation, calling upon the empathy of the judge or jury to feel the emotion of the matter at hand as a means of convincing them to render the desired judgment or verdict. It relies on the belief that most people make decisions based on emotion, and then justify that decision with logic.

Here are several effective ways to arouse emotion:

Tell a story: One that embraces the theme can enhances the desired emotional response.

Use figurative analogy: This is another characteristic of emotion worthy of consideration, as exemplified by Moe Levine.

Consider schemes and tropes: The words you select are influential in stirring the emotions you seek to arouse. Schemes and tropes can be very effective in the art of persuasion. A scheme changes the traditional order of words for drama or effect (e.g., “wonderful, wonderful, a wonderful man was my dear husband, Henry”). A trope changes the significance of words (e.g., metaphors and similes).

Ask rhetorical questions: Leaving a question unanswered for the listener can spark a jury to feel the distress of the client — or anger, if that is the goal. “Look at him, ladies and gentlemen. Does he look like the type of person who could commit this heinous crime?” Here, counsel is imploring the jury to conclude “not guilty.”

Humanize the client: This can go a long way to obtaining emotional appeal and cultivating support for a case.

Don’t underestimate the understatement: In a criminal case, the prosecutor states: “I will not dwell on the slight speed the defendant drove the getaway car, when he says he was slightly inebriated. The facts were clear that defendant was driving the car at 90 mph, and that he was very inebriated.” This understatement effectively arouses anger in the jurors.

Be sincere: It is essential that you demonstrate the emotion you seek to arouse. Sincerity is demonstrated not only by chosen words, but also by tone of voice, body language, and presentation of photographs.

Appellate arguments

While opportunities for cultivating emotion in the appellate courts are not as robust as during trial, opportunities do exist. Public policy issues frequently play a major role in the development of the law, and these issues often have emotional undercurrents that can be stirred by adroit advocacy.

Moreover, every erroneously decided case on appeal is saturated with emotion over the injustice of the errors below.
However, be mindful not to treat the appellate court as the trial court. The former exists to address alleged errors of law and is not receptive to emotional tirades.

Finally, remember that judges and jurors have entrenched attitudes and beliefs that they invoke during the proceeding. So connecting on an emotional level requires an understanding of their frame of mind and whether the planned approach has the potential to be effective.

Although challenging, it may be prudent to present a particular emotional appeal that takes piece of mind into account. Even more challenging is the probability that not all members of a jury or appellate court panel have the same preconceived frame of mind. Therefore, it is wise to learn more about your listener.

Unfortunately, this is not always possible. Sometimes you must surmise, based on experience. Judges are public figures so you have access to their written opinions, making it easier to ascertain their thought processes and potential emotional responses. Jurors pose a greater challenge because they are strangers. Nevertheless, conducting focus groups or watching mock jurors deliberate can be very constructive in ascertaining how jurors will react.

Advocacy is an art, not a science. Understanding the fundamental elements of logic and emotion, and how to apply them in the art of persuasion, is a lifelong quest well worth pursuing. Like many aspects of trial practice, you learn not only by reading and studying, but also through experience by applying these concepts during actual presentations both at trial and on appeal.

Paul Mark Sandler, trial lawyer and author, can be reached at pms@shapirosher.com.