Embrace the Power of “You May Think…” | Holland & Hart – Persuasion Strategies

An experienced attorney stands in front of the jury, presents the critical argument, then, making eye contact with the jury, adds, “Now you may be thinking…” before spelling out and then responding to a key point in the case. ‘waiting. resistance. This approach – anticipating and reacting to the likely responses of your target audience – is an approach that works. I recently completed a focus group with a lawyer who used this approach over and over again, wrapping his arguments around predicted jury thought processes, and the focus group participants ate it. A fake juror said she really liked this lawyer, “because he answered the questions as we thought…”. Another added: “He spoke at the speed of my thought.”

This very engaging style is probably not fully self-conscious, but rather a long-term rhetorical habit on the part of the lawyer. The habit is to perceptually put yourself in the shoes of those hearing this story for the first time and construct an instant response to what they might be thinking. This means using phrases like,

When you hear this, your reaction might be…
One question this raises is….
So the next piece you might be waiting for is…
Chances are you’re wondering…

Of course, you won’t always be absolutely right about what your audience thinks, but including them in your reasoning still helps because it establishes a more dialogical and conversational relationship. In this article, I’ll share some of the reasons and considerations for generally including jury thoughts in your plea.

There is power in simply saying “you…”

One of the most basic reasons the strategy works is simply because it recognizes and speaks to the audience. Instead of just making a static argument and presenting it to a seemingly passive audience, you explicitly identify and engage with your audience. It challenges them to be an active participant, and it earns respect. It subtly transforms the relationship of your reasoning to the public to your reasoning with the audience.

There is power in establishing dialogue

Except on a voir dire conducted by a lawyer, jurors don’t really talk to you. But even during the remaining one-way communication portions of the trial, a rhetorical style that invokes their responses can go a long way in piecing together what that dialogue would be like if they were able to talk. If you, as the presenting lawyer, think about these answers and adapt to them, you can create the feeling that you are thinking along with them. This conversational approach is much more likely to lead to persuasion, for the same reasons that a Socratic dialogue will have a greater chance of influence than a simple list of reasons.

There’s power in testing it

Sure, you might be thinking (see what I did there?), “but I don’t really know what jurors are thinking.” And that’s right. But even if you don’t have perfect telepathic abilities, I think you can make reasonable predictions about how a new audience is likely to understand and respond to your arguments. And the beauty is that when you don’t know, you can test it. It’s a major benefit of talking to jurors in a focus group – give them a little about your case, ask for their immediate reactions, and then adjust to those reactions. It’s a great way to develop a more sensitive and responsive style with jurors.

There’s power even if you’re wrong

Of course, even after reasonably predicting and even testing what they think, you could be wrong. You might be wondering if I throw out a negative thought that they didn’t have in mind yet, did I just hurt my case? Possibly, I suppose, but I probably think not. Chances are, this reaction won’t happen until later, perhaps when the other party persuades them. Introducing and responding to the reasonable reaction is like an inoculation against this argument on the road. It always engages and always fosters the feeling that the jurors are in conversation with you.

There’s a danger if you’re not respectful enough

A final caveat is that this is a strategy that proceeds from respect. If you’re one of those rare litigators who feels that juries are generally unintelligent and disengaged (I once heard a lawyer refer to jurors as “hay bales”), then this isn’t the strategy for you. If even a little disrespect seeps into your “maybe you think…” statements, then you better not make them. For example,

I know you think this is just legal gibberish, and you can’t make head or tails of it, but….

That might be true, but the risk of passing on that second personality in the form of your point of view to the jury is just too great.

If you are already using this strategy, use it more. If you’re not already using it, consider dedicating your next opportunity to present to a jury as a chance to develop a more dialogic style by anticipating and responding to their thoughts. That works.

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Image credit: 123rf.com, used under license

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