Thanks for Arguing

• When you argue to a Jury, there are really only two arguments they can choose from: yours and your adversary’s. Using emotion in your argument, lead the Jury to your choice.
• Convince the Jury that what you want them to do makes sense so they can have a clear conscience when rendering a verdict in your favor.
• Set goals for yourself and goals for the Jury. Do you want to change their (1) mood, (2) mind or (3) willingness to carry out what you want?
• Aristotle: All decisions come down to three elements: (1) blame; (2) values; and (3) choice.
• Rhetoric / Arguments: You will never get your point across if you argue and do not touch on the core issue.
  • Demonstrative Values – Present – Good v. bad. Meet a community’s ideals or fail to live up to them.
  • Forensic Blame – Past – Determine guilt and mete out punishment.
    • g., Hillary Clinton is “crooked.” Donald Trump is “deplorable.”
  • Deliberative Choice – Future – Argue about choices to help reach mutual goals.
• Questions for Jury: (1) who is to blame for what happened and (2) how do we prevent this from happening again?
• Stick to the facts. Any “fact” in the future is objectionable speculation.
• Never preach to the Jury. They will decide against you if you do.
• Never debate the undebatable. A juror is never going to change his/her morals based upon anything you say at trial. Instead, use their moral compass to lead them to the verdict you desire.
• What is “irrefutable”? It is something with three characteristics: (1) permanent; (2) necessary; and (3) undeniably true.
• Morals are inarguable. It is what is permanent, necessary and reliably true.
• If you want the Jury to make a choice, talk about the future. Choice is the central issue.
• Aristotle’s Big Three: Argument by (1) Ethos – Character; (2) Pathos – Emotion; and (3) Logos – Logic.
• Cicero: Humor is an effective debate tool.
• Ethos – Employs the advocate’s (1) personality, (2) reputation, and (3) trustworthiness. These are arguments appealing to the gut instinct of the Jury – tells them whether they can trust the advocate.
• Logos – These are arguments following rules of logic, tracking what the Jury is thinking. These are arguments appealing to the intelligence of the Jury – tries to sort the facts.
• Pathos – These are arguments appealing to the heart of the Jury makes them want to take action.
• These three (Ethos, Logos and Pathos) work together in harmony to make a persuasive argument.
• A sterling reputation is priceless. How a person’s life is lived persuades better than his word.
• Cicero: A genuine emotion persuades more than a fake emotion.
• Ask yourself always:
  • Do my points make logical sense?
  • Will the Jury trust what I say?
  • How can I get the Jury motivated to render a verdict in my client’s favor?
• Use your opposing counsel’s words against them at every opportunity.
• Concede points promptly where/when necessary. Concession is so refreshing to the judge and jury. It takes the fight out of an argument and thoroughly rattles your opponent psychologically.
• Never get emotional. Make your arguments and always act professionally in such a manner that even your opposing counsel would want to buy you a beer after the case is over.
• Nudge the conversation always in the direction you want the Jury to go.
• Sympathize with the Jury and then, with your argument, lead the Jury emotionally where you want them to go. Over-sympathizing, however, equates to ridicule. So, be careful walking that tightrope.
• You must thoroughly know and understand your opposing counsel’s position.
• Goal – get the Jury to like you. Become a walking, talking consensus of the Jury.
• An ethical person meets the Jury’s rules and values.
• Ethos – fit in with the Jury’s expectations.
• An agreeable ethos sets the tone for the Jury’s expectation of a leader’s (1) tone, (2) appearance and (3) manners. Romans called this “rhetorical decorum.” Decorum tells the Jury, “do as I say and as I do.”
• Make sure you always dress slightly better than the best dressed juror. Why? You want them to respect you by your appearance, and a nice suit does that. But, you do not want to dress too wealthy, or the Jury will resent you. Shoes are key. If an attorney has poor quality shoes, it does not matter how expensive the suit.
• Act the way the Jury expects you to act and not like the average juror acts. You must be more.
• Every era has its rules. We must continually adapt ourselves to those “rules” as we grow older so as to always maintain the proper decorum.
• Manners – ways by which we treat one another.
• Decorum follows the social mores of that particular jurisdiction. Mississippi if certainly far different than California.
• You cannot be indecorous and persuasive at the same time. They are mutually exclusive.
• Deliberative argument is about choices, not truth.
• Discretion is the better part of decorum.
• What does this particular Jury expect? No one argument works every time. You must adjust your presentation to fit that particular venire.
• The Jury must become comfortable with you.
• Cicero: You cannot play a character for the Jury that strays too far from your own.
• Decorum – art of the appropriate
• Always dress one step ahead of your station in life. Look the way the Jury would expect and want you to look.
• Decorum is an aspect of sympathy.
• Adjust your presentation to the Jury’s beliefs and values. Use appropriate language for that particular venue. Just observe how a politician adapts his dress, style, and mannerisms depending on the crowd.
• Persuasion is power and requires sympathy. It is being true to your audience.
• Decorum is difficult, especially in today’s age when everyone mimicks one former president’s outlandish behavior. But, decorum always eventually commands respect. Michelle Obama: “When they go low, we go high.”
• Get the Jury to identify with you, and you have won half the battle of persuasion.
• Look to the United States Senate for examples of decorum, to wit: “Introducing the distinguished Senator from the great state of ______.” Regardless of party affiliation, U.S. Senators treat each other with respect at all times.
• You earn the Jury’s love through your decorum (actions speak louder than words).
• The perfect Jury is (1) receptive – sitting still, (2) attentive – willing to listen to what you have to say, and (3) well disposed toward you – like and trust you [most important of 3]. All three require argument by character.
• Aristotle: The Jury must trust your judgment as well as your essential goodness.
• A Jury will not follow you to an irrational verdict, even if they do like you.
• Your Jury must consider you a good person who wants to do the right thing.
• Aristotle’s three (3) essential qualifications of a persuasive advocate: (1) Virtue / Cause – Jury believes you share their values; (2) Practical Wisdom / Craft – You appear to know to do the right thing on every occasion; and (3) Disinterest – The Jury’s interest(s) are paramount.
• Be virtuous in your argument by embodying the fundamental values that bind us together as a people and a nation.
• Values change from audience to audience. Determine the Jury’s values and live up to them.
• Whenever you see a member of the venire acting irrationally and then passionately defending their irrational behavior, look for an underlying virtue they feel they must defend at all costs.
• Rhetoric is about: (1) awareness; (2) attitude; and (3) technique.
• Erudition is the goal.
• Always get others to brag for you. Never brag about yourself.
• Reveal an appealing flaw in you that evokes empathy from the Jury or shows the sacrifice you have made for the cause.
• Goal: Become an exemplar of the Jury’s values.
• Do not recite your resume to enhance your ethos. People detest prideful people. Let your references be the messenger. Just look at John McCain. He never ever bragged about his heroism or military service.
• Always identify with the Jury.
• If an alternative theory of the case emerges during trial, feign to the Jury that this was your theory of the case all along.
• When an argument is doomed to go against you, heartily support the opposing position. Make an inevitable decision against you look like a voluntary concession all along.
• Rhetorical virtue is the appearance of
• Practical wisdom: the Jury thinks you know your craft and can solve the problem at issue.
• Three traits of ethos: (1) cause; (2) craft; and (3) caring.
• Craft: the appearance of knowing what to do.
• Before you can persuade the Jury, you must mine your most precious resources, the potential jurors during voir dire.
• Persuasion starts with sympathizing with what the members of the venire believe.
• Before the members of the venire follow you, they must find you are a person worth following.
• Sharing the same values as the members of the venire is insufficient. They must also believe you know the right thing to do at the moment.
• The Jury must consider you a sensible person as well as sufficiently knowledgeable to deal with the problem at hand. In other words, the Jury must believe you are a master of your craft.
• Juries favor successful businesspeople and doctors.
• Craft = Instinct of making the right decision on every occasion, i.e., flexibly wise leadership.
• Craft – Practice and hone your craft to such an extent that it becomes instinct.
• Disinterest – Make your audience believe in your selflessness by either seeming wholly objective or nobly self-sacrificing.
• Cicero: In order to maintain your objectivity, seem to deal reluctantly with something you are really eager to prove. Make it seem as though you reached your opinion only after overcoming overwhelming evidence.
• To get the Jury to trust you on your decision(s), you can employ 3 techniques:
• Show off your experience – If you are debating a war, e.g., and you are a war-time veteran, bring it up. It is fine to brag about experiences, just NOT about yourself.
• Bend the rules – If the rules don’t apply, then don’t apply them.
• Seem to take the middle course – Juries always like to make decisions that lie in between extremes. It helps the Jury to become convinced that your adversary’s position is an extreme one.
• Every proposal should have 3 parts:
• Payoffs;
• Doability; &
• • Describe the benefits of your choice.
  • Make it seem very easy to do.
  • Show how it beats the other options.

• Rhetoric is most effective when it leads an audience to make up their own minds.
• Show the Jury you care.
• Aristotle: Disinterested goodwill – combines selflessness and likeability.
• The persuasive attorney makes the Jury feel that he feels their pain too while, at the same time, remaining disinterested and (simply & effectively) doing his job.

• Times always change, so you must stay abreast of current societal perspectives. For example, Alexander Hamilton would have thought it strange that we now “worship” the ultra-wealthy, for back in the founding father’s time, this meant you were “interested” (i.e., corrupt, profiting at the expense of others) when the founding fathers were trying desperately to appear “disinterested.”
• Feign that you once embraced the opposing party’s position or theory of the case. Then explain to the Jury how their theory of the case just does not work. The JY will think: “What a fair-minded person.”
• Act as if you felt compelled to reach your client’s position or theory of the case, despite your own desires, because it was the right decision.
• Ethos counts more than any other aspect of rhetoric because it puts your JY in the ideal state of persuade-ability.
• Cicero: You want the JY to be attentive, trusting and willing to be persuaded.
• The JY will most likely listen to you if they find you worthy of their attention.
• You want the JY to consider you to be a role model, the essence of leadership.
• An argument rests on what the audience believes and NOT on what is true.
• Abraham Lincoln: Dubitatio (Latin for acting dubious) – Don’t be tricky. Seem to be in doubt about what to say.
  • Don’t try to calm your butterflies. Use them. An audience always sympathizes with a clumsy speaker. It is a tactical advantage. Then, gradually speak louder. You will seem to the JY as if you are gaining confidence due to the sure righteousness of your speeches’ contents. This is a cure for stage fright, and it absolutely works.
  • While the audience must think you have all of the righteous attributes, that doesn’t mean so in reality. We are all flawed.
  • The best trick of all: Make it seem you have no tricks.
  • Abraham Lincoln: Set your audience’s expectation very low. For example, Lincoln spoke with a characteristic high pitch whine and talked always about the nation being in a problematic state. So, expectations were so law from the inception that he could only build from there. As his voice became louder, he drew his audience’s attention to his key points.
  • Research results show a knowledgeable audience tends to sympathize with a clumsy speaker.
  • George H.W. Bush was also a master of Lincoln’s dubitatio. Blue staters mocked President Bush for his “Bushisms” like “nucular”, while the rest of the country grew to love him more and more.
  • When you give a talk to a group, begin hesitantly and gradually get smoother as you go. Grab the JY’s attention by the conclusion of the first 5 minutes. After that, research shows that everyone’s mind drifts onto other things.
• Never use an opening joke.
• JYs crave authenticity. In this digital age where everything is simulated and unrealistic (e.g., movies), they crave something authentic that looks genuine.
• Authenticity lies at the heart of rhetorical character.
• Look at Woody Allen. His brilliance always gets (intentionally by him) overshadowed by his fallibility.
• NB: The JY must never know your rhetoric’s inner workings.
• Don’t rest on your personality and reputation. You perform them.
• You can start fresh with your cause, craft and caring in every argument.
• Ethos: Pay attention to the JY. Share in their ideals and values. This makes you agreeable, both literally and figuratively.
• Even in ancient Greece, the audiences preferred plain speakers over the fancy speakers.
• Caring or disinterest is the appearance of only having your JY’s best interests at heart, even to the point of sacrificing for the good of the others.
• Reluctant conclusion: Act like you arrived at your conclusion only due to its overwhelming rightness.
• Claim that the choice will help your JY more than it will help you. Even better, maintain that you will actually suffer from the position.
• Dubitatio: show doubt in your own rhetorical skill. The plain spoken seemingly ingenuous speaker is the trickiest of all in that he is most believable to the JY.
• Authenticity: Make your JY think you are for real, just being your genuine loveable self.
• The Aquinas maneuver: Control the mood. The most persuasive emotions at your service.
• A great orator not only expresses his emotions to the audience, but he also wholly manipulates the emotions of his audience simultaneously.
• The speaker has 2 burdens: (1) burden of proof and (2) burden of emotion.
• An empathetic person suffers when other people suffer. In a study of schools, parents and teachers found they preferred students who displayed feelings of empathy over children with good grades.
• Sympathy means perfectly understanding another person’s emotion without actually feeling it.
• Empathy shares feelings.
• Sympathy cares about feelings but does not share them.
• Pathos affects the JY’s judgment. The limbic system tends to overpower the rational, logical aspects of the brain.
• Storytelling appeals to all aspects of emotions.
• Emotions are linked to the familiar.
• Emotional volume control: Don’t visibly exaggerate your emotions. Let the JY do that for you. When you argue emotionally, speak slowly and control your volume.
• Let emotion build gradually.
• Emotion works best at the end of your speech.
• Start slow and let your volume increase during the course and scope of your presentation.
• Fear compels people to act, and compulsion precludes a choice. Then, people are acting on basic instinct.
• Show your opposing party as dismissing the JY’s desires and belittling your cause.
• Humor ranks above all other tools in persuasiveness in part b/c it works the best at improving your ethos. A sense of humor not only calms the JY down, but it makes it seem as if you are above petty squabbles which consume your opposing party’s theory of the case.
• The problem with humor: It is awful at compelling the JY to take any sort of action. When people laugh, they do not want to do anything else.
• Aristotle: Sorrow, shame and humility prevent action altogether and make the JY introspective, feeling sorry for themselves.
• Aristotle: Joy, love, esteem and compassion – the JY revels in them.
• You want the JY to identify with you and through you take the action you desire them to take.
• The kind of anger that comes from belittlement is especially useful. If you want a client to take some sort of action, demonstrate to that potential client that the opposing party did not take him/her seriously, thus belittling them in the process. Belittlement leads people to demand an apology.
• Anger gets the fastest action, which is why political advertisements try to get you mad. However, anger is the worst emotion for deliberative thought. People get instantly angry at such items, but it isn’t lasting.
• Emulation: Emotional response to a role model. It arises from our need to belong. In order for emulation to work, you must start with a model the JY already looks up to. Provide only the kind of role model the JY already admires. People imitate what they see.
• By giving advanced warning of an emotion, you inoculate the JY from it.
• The unannounced emotion – Don’t advertise a mood. Invoke it.
• Nostalgia – Promise a return to a perfect past. This is how Trump won the Presidency: “Make America Great Again!” Brexit: “Take back control.”
• Nostalgia is a yearning for simpler and better days gone by. Colleges and universities do this better than anyone in order to solicit donations from alumni/ae who reflect fondly on years gone by. It is no accident that alumni/ae events at colleges and universities are called “Homecoming.”
• Desire/Lust: Exploiting your JY’s lust for something into taking action. It is the spoonful of sugar which sweetens your logic. Crudely, this is why product manufacturers use women in bikinis to sell their products. Desire is not all about sex. Some gardeners lust after the perfect rose, e.g. People have different desires, and different desires lead to different actions. It provokes your audience to take action.
• Emotion makes the difference between agreement and commitment.
• A well-told narrative gives the JY a virtual experience, especially if it calls on the JY’s past experiences and you tell it in the first person.
• Volume control: You can best portray an emotion by underplaying it, seeming to struggle to contain yourself.
• Simple speech: Do not use fancy language when you get emotional. Plain speaking is more pathetic.
• Anger often arises from a sense of belittlement. You can often stir a JY to action by demonstrating that your opposing party does not have any regard for their emotions.
• Nostalgia uses a yearning for the past, especially to days when your future seemed so bright.
• Persuasion gaps: First find them. Then fill them with a desire for the JY to be persuaded in your client’s favor.
• Turn the volume down. Use a passive voice. Act as if things happened on their own. The technique works to calm the emotions because it disembodies the speaker and removes the actors from the equation as if what happened was an act of GOD.
• The passive voice calms the JY. The technique serves to take emotion out of the argument.
• Just do not use the passive voice when you are the culprit because then the Judge or JY will think you are trying to weasel out of something you have done.
• When a juror’s brain is on auto-pilot, he/she is more susceptible to persuasion.
• The brain essentially operates in 2 gears: (1) auto-pilot, operating instinctively; and (2) thinker – one who cogitates, working on the hard problems, asking questions and figuring things out. (2) is skeptical at what you say.
• To appeal to (1) – keep everything simple. The moment you begin to confuse someone, (2) arises. Use simple language and avoid jargon. Keep your sentences short. Stick to plain, honest language. At the same time, give the JY power by allowing them to make the choice (in your client’s favor) so they remain on auto-pilot and empowered to render a decision in favor of your client.
• People frown when they are thinking, thus letting you know that (2) has kicked in. In order to prevent this from happening, smile frequently. It is disarming and will keep the JY on (1).
• Well-timed humor relaxes the JY’s emotions and releases anxiety. However, if you are not humorous, do not try. It must come naturally. Do not force humor. Just be ready for every opportunity to insert humor, where appropriate.
• Winston Churchill: When the opportunity arises, agree with your opponent if you can use that point against your opponent’s argument. Process: (1) accept your opponent’s point at face value and (2) follow its logic to a ridiculous conclusion or simply throw it back at your opponent with a twist.
• Never make jokes about (1) a shocking crime or (2) a pitiful victim.
• With your clients, use a screw-up to strengthen your relationship. First, tell your client you wanted to be upfront and be the bearer of bad news. It shows you are forthright. Then, detail what you have done to fix the problem. Finally, state how angry you are for not living up to your usual standards.
• Keep the JY in an easy, docile and instinctive state so that your argument will be digested more easily.
• Base your argument on what is good for the JY, not for you. Attorneys often pitch an argument that is good for themselves and not for the target audience, the JY. You need to convince the JY that the choice you offer is the most advantageous to the JY, not you or your client. The advantageous = giving the JY an outcome it values.
• While the decision is up to the JY, the burden of proof is on you. To prove your point, start with something your JY believes or wants.
• An unpersuadable audience tends to repeat the same rationale over and over. It does not matter whether the rationale is good.
• Use commonalities as the jumping off point for your argument.
• Before you begin your opening statement, use voir dire to determine what your JY is thinking and what their values and beliefs are. Once you can find the commonality/ies of your JY as a whole, appeal to those shared values and beliefs throughout your trial.
• Commonalities represent opinion, not truth or fact.
• If you can define an issue that is familiar and comfortable to the JY, you will capture the higher ground. Find out, through voir dire, what does your JY hold most dear.
• Frame your issue so that it is well-defined for the JY. It sets the bounds of discussion and stops your opposing counsel from redefining your issue. You define the issue in your terms.
• Metastasis – Skipping over a difficult topic.
• In framing your issue, you want to choose terms that favor you while putting your opposing counsel in a bad light. That means using words that already contain a big emotional throw-away with the JY (e.g., “good heart”, “robust”, “relate”, “learning experience”, “traumatized”)
• Your job as a trial attorney is to find the commonalities among the individual jurors during voir dire, issues or topics or ideas that appeal to most/all of the JY.
• Do not narrow the issue too much. Frame the issue in terms of values everyone shares.
• Redefinition: Do not automatically accept the definition your opposing counsel attaches to a word. Redefine it in your favor. That way, you sound as if you agree with opposing counsel’s argument while you cut the legs out from under it. Redefining to a lawyer must become a matter of instinct. Bill Clinton: “Please define what the meaning of the term ‘is’ is.” When redefining, redefine the connotation of the word, not the dictionary meaning of the word.
  • Examples:
  • “Liberal” :
    • Conservative: “Liberal means tax and spend.”
    • Liberal: “Liberal means redistributing assets from the rich to help the poor.”
  • “Tort reform”:
    • Conservatives: “Frivolous lawsuits”
    • Liberals: “Providing everyone equal access to justice”
  • Make sure the definition you start with works in your favor.
  • When you drop a term to the JY, define it. Using obscure words does not show you are educated.
  • Redefinition jiu jitsu: Accept your opponent’s term and connotation. Then define it as a positive thing.
  • If your opposing counsel labels your argument, or a portion thereof, as “unoriginal”, embrace it and state you are using it because it is a time-tested, proven method that works.
  • When you frame an issue, use key words therein that you can use repeatedly throughout the trial. The JY will automatically remember the issue as you have framed it. Repetition is key.
  • Define your client’s position with a term that contrasts your opponent’s.
  • Make your opposing counsel’s most positive terms from their framed issue look like negatives. But never engage in personal attacks!
  • Use contrasting terms that make your opposing counsel look bad.
  • Argue that your opponent’s argument is less important than it seems or claim your opponent’s point is irrelevant.
  • Dialectic: Strictly logical argument which is mathematical and formulaic. While it trains the mind and can help you spot fallacies, it is too rule bound to help you in an argument.
  • The opinion of the JY is more important than the facts. What the JY thinks is true is “the truth” for purposes of your trial.
  • Syllogism: All men are mortal. Socrates is a man. Therefore, Socrates is mortal. Another example. All democrats are “tax and spend liberals.” My opponent is a Democrat. Therefore, my opponent is a “tax and spend liberal.” [It is deductive logic. Formula: Fact 1. Fact 2. Conclusion must be true because of Facts 1 and 2.]
  • Inductive logic works the opposite way, taking specific cases and using them to prove a premise or conclusion. Socrates, Aristotle and Plato all are dead. Therefore, all humans are mortal.
  • Deductive logic starts with the general and works toward the specific. The premise proves the examples.
  • Induction starts with the specific and works to the general. The examples prove the premise.
  • A premise is something the JY either knows or believes.
  • Proof consists of examples or a premise. Premise usually begins with “because” or implies it.
  • Inductive logic follows a trail, picking up clues that lead to the end of an argument. Deduction logic uses a common place as a takeaway to apply to an example. Deductive logic: premise, therefore conclusion. “You believe this, so you should do that.” Induction uses examples for its proof instead of common places. Induction is great when the JY’s common places don’t work for your case.
  • You can use both inductive logic and deduction logic to make a really strong point. In such cases, you use both examples and premise. Work up a logical outline. First construct a theme that the JY believes in that sums up your client’s case. The rest of the outline lists the facts and compares your argument to opposing counsel’s. Include at least 1 anecdote that sets forth your point on the micro level. President Ronald Reagan used this method frequently in his presidential speeches.
  • The most persuasive litigators are comfortable in their logic.
  • The most insidious fallacies are the ones that seem valid on their face, until you take them apart.
  • All logical fallacies boil down to bad logic.
  • To determine if a fallacy lies in an argument, ask yourself 3 questions: (1) Does the proof hold up?; (2) Am I given the right number of choices?; and (3) Does the proof lead to the conclusion?
  • An ability to detect a fallacy helps defend yourself against your opposing counsel’s argument.
  • Fallacy contains: (1) false comparisons; (2) bad examples (when there are more examples available and not being made known to the JY); (3) ignorance as proof (e.g., the lack of examples somehow proves something – which is absurd).
  • Deadly sins: (1) false comparison; (2) the bad example (there is a disconnect between the examples tendered and the choice; the examples do not support the offered choice); (3) ignorance as proof (i.e., what we cannot prove cannot exist); (4) the tautology (i.e., the same premise gets repeated over and over again in different words – they agree because they are the same thing); (5) the false choice (JY being given less than all of the choices available; (6) the red herring (it switches issues in mid-argument to lead the JY off topic – example: Johnny Cochran’s use of the glove in the OJ Simpson trial); and (7) the wrong ending (slippery slope – If we allow this reasonable thing, it will inevitably lead to an extreme version of it).
  • Name the fallacy to the JY.
  • Reductio ad absurdum: Boil your opponent’s argument down to an absurdity or an absurd result.
  • Fallacy of antecedent: (1) It never happened before so it will never happen; or (2) It happened only once so it is unlikely to ever happen again.
  • Common fallacy – Post hoc ergo propter hoc: After this, therefore because of this. The reason this followed that does not lead to the conclusion that this caused that.
  • Never argue the inarguable. Untenuous arguments always lead to an illogical conclusion.
  • Show yourself to be a better person than your opponent. Do this by showing little negative emotion. Seem slightly disappointed in your opponent, which the JY will pick up on and root for you.
  • Dress well. Clothes really do “make the man” and cause the JY to respect you more.
  • If you are boring, you will lose the JY’s attention.
  • Keep attention to words that do not make logical sense in your opponent’s argument and seize the opportunity to use them in their logical sense to strengthen your argument and weaken your opponent’s argument.
  • Use word play when you can. For example, “Wall Street” connotes financial industry throughout the United States. “Main Street” connotes family values and middle-class America.
  • Never use profanity. It takes the worst curses we have and places them upon a person. It is wrong, offensive and makes you appear foul and unclean to the JY.
  • Worlds evolve over time. The word “negro” is Latin for black. Back in time, when Huckleberry Finn was written, the word “n****r” was used with great frequency throughout the book, and at that time in history, the word did not spark racial division as it does now. Today, it is absolutely improper. Be cautious with words you use as they change over time.
  • To this day, words summon the power of belief, expectation and identity in your JY. Use them carefully.
  • Get the JY to identify with your position, i.e., the people and things your JY identifies with so that you can become their ideal leader. They will start thinking of your choices as their choices. People are tribal and naturally hate being left out. If you get the majority of the JY on your side, the rest of the JY will naturally want to change their position to fit in with the larger group.
  • Favor the present tense and use terms that appeal to a large demographic.
  • “I understand”, “peace”, “security” and “protecting” are all words that make the JY feel naturally safer and more secure/comfortable with you.
  • Use shared values to create a common identity with your JY. “We are called together to make our community a better place.” – President George W. Bush
  • Repeat terms that represent the opposite of the weakness of your case and the strength of your opponent’s argument.
  • Use a heavy dose of logic spiked with shared values.
  • Avoid denying-type words because they hurt your argument. For example, if you say to a child, “I am not a crook” (President Richard Nixon), reinforces the belief that Nixon is a “crook.” Another example, Queen Elizabeth – “We are not amused.” in lieu of “We are appalled.”
  • Make the JY identify with your choice.
  • Use language that makes the JY feel most comfortable and secure in their verdict.
  • Aristotle: Logic works best in an intimate setting instead of with a large crowd.
  • Salaries show concretely what professions we value in society.
  • Have an outline of your argument and stay on point. Human minds naturally wander. You need to stay on point at all times. Do not digress and thereby distract your JY.
  • The point is identity, to make everyone in the JY want to belong by collectively embracing your choice.
  • Code language – words that trigger an emotional response.
  • Action requires commitment which requires emotional power.
  • Code inoculation – list the code words that appeal to you so you can be conscious when your opponent uses them.
  • Ideas become belief when the JY identifies with them. By doing so, the JY will identify with you, and then with your choice (as one that helps define them as a group).
  • Do not use irony. It polarizes part of your audience, thereby tearing the JY apart from a cohesive group to a divided one, thereby hurting your case.
  • Apology in Greek: to defend yourself with rhetoric.
  • Our first instinct when we make a mistake is to get defensive. Don’t. First, be first to admit your mistake. Readily acknowledge it. I screwed up, but here are choices that can fix my mistake so that it does not happen again. Focus then becomes on the future, not the past. By doing so, you enhance your ethos with the JY. Your job is not only to recover your reputation but to enhance it: more trustworthy and likeable than you were before you screwed up. Demonstrate you know how to fix things and show you are adaptable. You need to show that you care by fixing the problem. It shows you exemplify goodness demonstrating essential values.
  • Anger comes from belittlement. People get angrier when you respond badly and dismiss their feelings. It makes the JY feel belittled, and they will turn on you.
  • Apologies don’t work because they make you look and feel less and does not draw the JY closer to you. An apology focuses in on the past, does nothing to fix the problem, and delays your opportunity to quickly repair the problem.
  • When you own up to falling short of your own expectations, you emphasize your high standards. Focus on your high standards, and you can actually make your ethos bigger to the JY. Say you are sorry, and you shrink.
  • People will go to almost any lengths to protect their own identity – how they see themselves in their mind’s eye.
  • Look for those fleeting moments when there is an opening for persuasion. Seize it. Exemplify your decorum and lead the JY toward your proposed verdict. For example, Stalin would sit silent at the Politburo until the end of the meeting with his command staff. Then, he would weigh in on the choices presented by tendering his argument as to why that was the logical choice.
  • The last speaker has the persuasive advantage. Take advantage of this by restating positions, including your opponent’s. Then drive home your choice as being the only reasonable one.
  • If your opponent’s position is weakening as the case wears on, now is the time to strike and never relent until the conclusion of the trial.
  • The time is right when the circumstances of the trial visibly change the JY’s mood.
  • Belief or expectation enhance people’s moods.
  • People are more receptive when they are hungry. Use this to your advantage. Prior to lunch during your trial, make some of your strongest arguments. This is why realtors encourage sellers to cook bread or cinnamon rolls when holding an open house.
  • Have a positive attitude – positive to the point of appearing disillusioned. It is captivating. President Bill Clinton did this in the Democratic primaries all the way through seizing the presidency.
  • Watch your conduct and behavior at all times. The JY is always watching you, whether you realize it or not. They are evaluating you to see if you are someone worthy of earning their trust.
  • Make your points using as few words as possible. Be concise and succinct.
  • Human communication is almost entirely logical. Yet, people need ethos and pathos in order to connect with you. That is why business professionals fly all over the country to hold in-person meetings rather than Zoom or conference calls. Eye contact, purposeful bodily movement, and well-timed silence all combine to have a profound impact on your audience.
  • Sight is mostly pathos and ethos. Hearing is almost entirely logos.
  • Cicero’s 5 canons of persuasion: (1) invention; (2) arrangement; (3) style; (4) memory; and (5) delivery. This is the order you must use to make a speech. First, invent what you intend to say. Second, decide what order you want to say it in. Third, determine how you will style it to suit your audience. Fourth, memorize your speech or, better yet, outline it so that you stick to it. Finally, get up and wow your audience.
  • Refer to respectable sources so you sound like you have authoritative support for what you are saying. Then coyly ask: “Who am I to question such authority?” It makes you appear that you are wearing a cloak of modesty.
  • Instead of sitting down at a computer or in front of a legal pad to jot out your argument, take a long walk and think on it for a while. Then return to your office and write down the rough draft of, e.g., your opening statement.
  • What is your goal? To change your audience’s mind, mood or its willingness to do something.
  • If the issue is complex, break it down into a series of smaller issues for the JY.
  • Always be prepared to argue both sides of the case. That way, you know what your opponent is likely to argue, and you can then be prepared to challenge the foundation upon which your opponent’s argument is built, thus totally dismantling it.
  • When trying a case in a foreign venue, you must spend some time there learning about the people from which your JY will be formed. People in New Hampshire (“Live Free or Die”) have wholly different values and beliefs than people in neighboring Vermont (“Freedom and Unity”). The people in NH are conservative and property rights advocates. The people in Vermont are welcoming and value unity of their communities.
  • Arrangement must be in the following order: (1) ethos; (2) logos; and finally (3) pathos. Start by getting the JY to like you through your shared values, your good sense and your concern for their interests, thus making them identify with you and earning their goodwill. Then, launch into your argument stating the facts, making your case, proving your point logically and refuting your opponent’s argument. Don’t startle your JY with “believe it or not” facts. This part must be predictable, usual, expected and natural. List the points where you and your opponent agree and where you disagree. This is where you can inject definitions into your argument as well. This case is an “ethical issue” or a “fairness issue”, for example. End by getting your JY enthused to render a verdict in your favor.
  • When you refute your opponent’s arguments, you must utterly obliterate them. Leave no stone unturned.
  • Use proper language: words that suit the occasion and the audience.
  • Decorum: the art of fitting in.
  • Vividness: Does your argument impact all of the JY’s senses?
  • It is better to avoid gestures altogether than to use the wrong ones and potentially offend a juror.
  • When you are nervous and have butterflies, speak loudly. Your voice will appear confident.
  • By putting the proof before your conclusion, you turn an argument into a story while discovering your point along with the JY.
  • Use your opponent’s beliefs, expectations and desires as a tool which you can then leverage to bring the JY to your side. “Is the world a better place if you were to render a verdict in favor of my opponent?”
  • Refute your opponent’s position with facts in your client’s favor. Don’t condemn the opposing side. But you can express your disappointment that your opponent reached that position considering all of the facts.
  • Establish your character at the beginning of your argument. Then link your character to the “American way.”
  • End your argument with both a summary and a call to action.
  • Draw the scene so vividly with word imagery that the JY can experience the event for themselves.
  • Your frame is what your argument is about. If you have trouble with this, start with “This case is about…” It lets you cut to your theme and its implications for the JY.
  • Make something seem impossible by connecting it in the JY’s eyes to something else that is known to be impossible.
  • Create the moral center and frame of your argument by starting strongly in the first 12 seconds.
  • Humanism: The belief that society can get together and solve societal problems on their own.
  • The tactical flaw: You gain the JY’s sympathy through your own imperfection. In a speech, your own nervous butterflies can serve as the foundation for your obvious flaw. You make your JY feel like you are one of them, for we are all imperfect as human beings.
  • Never dictate to the JY. You will lose them. No one wants to be told what to do or to be talked down to.
  • A winning argument tells a story and has a setting, conflict, suspense and an epiphany.
  • What are the goals of your argument?:
    • Change the JY’s mood?
    • Change the JY’s mind?
    • Get the JY to do something?
    • Fixing blame on someone or something?
    • Bringing the JY together with an argument about values?
    • Talking about a decision that was previously made?
  • Dress at the level you aspire to.
  • When speaking with a client, identify what his/her/its desires/needs are and make a pitch to that.
  • Idiom: A rich set of words that convey a single meaning.
  • When you cannot refute your client’s argument, change the issue and argue that new issue as being more important and decisive of the issue than your opponent’s argument.
  • Value-laden terms carry more weight than logical terms do.
  • John Milton: Where there is much desire to learn, there of necessity will be much arguing. For opinion in good men is but knowledge in the making.
  • Cicero: A good oration should flow naturally from part to part.
  • Narration uses storytelling to relay the facts of your case to your JY in an interesting way.
  • Values cannot be the sole subject of deliberative argument. Eventually, a deliberative argument has to deal with black and white, not grey.
  • If your values differ from the JY, you need to gently lead them there bit by bit until they slowly agree with each step until the JY reaches your verdict.
  • Public opinion is democracy’s ultimate boss.

-Posted from the book “Thanks for Arguing” –  Jay Heinrichs