I had a jury trial in Midland County last week. ((Not guilty, thank you very much.)) The jury panel was very authoritarian — the prosecutor asked a Likert-Scaled (Strongly Agree — Agree — Disagree — Strongly Disagree) question: “Better that 100 guilty people go free than that one innocent person be punished?” Almost every member of the panel strongly disagreed with that proposition. ((To be fair, n=10 would have been a better test of authoritarianism in Midland County — even liberal legal philosophers do not all agree with Ben Franklin’s n=100.))

Yet I was fairly sure by the end of jury selection that I had brought most of the panel over to the side of the out-of-town criminal-defense lawyer wearing lace-up shoes ((Yeah, I left my boots at home.)) and his client. I was fairly sure by the end of opening statement that most of the jury thought my client hadn’t broken the law.

I would not have had this confidence early in my career. When we first learn to try cases, we learn the mechanics of voir dire, of opening statements, of direct and cross and closing. This is all useful stuff, of course.

I remember my civil pretrial litigation professor in law school asking the class, “Who is the most credible person you can think of?” but there was no systematic followup on the question, no breakdown of what made that person credible.

But a trial lawyer’s primary subject of study should be credibility. More specifically the creation and maintenance of the trial lawyer’s own credibility with jurors. This is the study that I applied to the trial in Midland.

If we could break down what makes credible people credible, we could formalize credibility — make a list of things to do and not do to replicate others’ credibility. You might say we could fake credibility, but credibility is just a feeling, so if it exists it is real. ((It may not be deserved, but that’s a discussion for another day.))

What a powerful tool we would have if we could formalize credibility. Any time we want to formalize something, for learning and teaching, we can look for a shortcut by asking, “what else is like this?” What else is like credibility?

Credibility is much the same as trust is much the same as liking is much the same as rapport. If there is rapport between two people, they likely like each other, trust each other, and believe each other. If you like someone, you trust them, ((At least in a narrow domain — we all know likable rogues whom we would not trust with our car keys.)) and if you dislike them, you most likely distrust them.

Fortunately, if we accept that credibility ? trust ? liking ? rapport, we’ll find that the work of formalizing credibility has already been done for us.

I realized the importance of rapport in hypnosis training: If you want to hypnotize someone, rapport is necessary.

So I looked for books on rapport. And what I found were books about picking juries, even though they weren’t about picking juries. If hypnosis is extreme communication, then it makes sense that rapport would be vital to lesser forms of communication as well.

Here are the books in order from shortest to longest, least heady to most heady:

It’s Not All About “Me” and The Like Switch are both by FBI Behavioral Science Unit agents, who study human nature for (among other things) eliciting confessions from subjects and turning foreign agents to spy against their countries.

How to Win Friends and Influence People is a classic for a reason. I wish I’d read it 20 years ago, and I think it ought to be required reading. One of those books that makes the pie higher — the world would be a better place for everyone if more people followed its precepts.

Instant Rapport is a book that my hypnosis instructors recommended. Its focus is on matching representational systems (primarily visual, auditory, or kinesthetic) with the subject.

Pre-Suasion helped me understand why the techniques in the other books work. As a bonus, it helped me understand why a Trial Lawyers College-style voir dire works to make the jury trust the lawyer —Chapter 10 (if I recall correctly) lays out concisely theory that supports each part of a TLC voir dire.

When I have my own trial school, these four books are going to be required reading. What are some of your favorite “not about trial but really about trial” books? Let me know in the comments.

7 responses to “Meditations”

  1. I’d also recommend you take a look at Olivia Fox Cabane’s “The Charisma Myth: How Anyone Can Master the Art and Science of Personal Magnetism.” I found it to be a tolerable practical guide (including exercises) to developing and cultivating ‘charisma.’

  2. Mark – as you know I was raised in Midland. You are right about Midland being conservative. Even 50 years ago my Dad was the only Democrat in his office.
    Midland was more backwoods then. A woman once approached my father on the downtown streets and asked ” are you a Jew, I heard you was a Jew?” My father affirmed he was Jewish and I think the woman asked if ” she could touch him, because she had never seen one before.” This story always made me mad but my Dad always took it in as good a humor as one could.
    In Midland I learned what it meant to be different. I wanted to be like all the other kids but there was always someone there to remind me I was different. I was “Jew Boy” ,
    ” Jew Bait”, ” Christ Killer” , “Dirty Jew” and my favorite “Black Jew”. ( I won a fistfight by default with the kid who called me “Black Jew” because he no showed behind the designated 7-11.)
    I was physically small but witty. I would lose in a fist fight but win in an exchange of words. So I responded to insults with keener insults and I mocked and belittled the bigots until they learned it was safer to leave my religion out of it.
    My Dad raised us with principles. The most important principle was to be honest. I am sure there are lots of books and studies on what it means to be honest. But I am also sure it’s not so complex. I think if you are honest with people they know it and they will trust you. That applies to juries. They know and like it when a lawyer is being honest. I think they like it partly because they don’t expect us to be honest. While being honest doesn’t mean you will win every trial, it does mean you won’t lose for being a liar.

    I suspect my fellow Midlanders appreciated your honesty. Congratulations on your win.


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