Persuasion -- Art or Practice?

I have a close friend who is a very successful sales executive at a large beverage company. We discussed that recently as we were talking about our respective jobs, and he said, “I have no illusion that what I’m doing is important like your work. I convince people that they absolutely NEED sugar water of various kinds, and not just any sugar water, but OUR brand of sugar water.”

I told him not to sell what he does short. Pun intended. His product brings brief moments of happiness or comfort to people, and that is valuable.

But it got me thinking about the job of trying cases. Aren’t we trial lawyers simply salesmen? After all, we attempt to persuade people to buy our product.

Many have heard the term, “the art of persuasion,” but I’m not convinced that it is an art. I’d prefer to change the language to “the practice of persuasion.” I’m certainly no artist. As an introvert, nor am I a natural at comfortable social interaction.

To become good at my job, I had to learn and then repeatedly practice various disciplines to become good at persuasion.

Try this at your dinner table tonight. Propose a resolution of something that seems semi-obvious. E.g., “The sky is blue.” You can probably think of better examples. Then ask your fellow diners to weigh in on whether that proposal is actually true. I wouldn’t be surprised if you get some to question it. Or at least point out that, “it depends.” What time of day? Are there clouds? Is the sun rising or setting? Etc. Will they all agree at the end of the conversation beyond a reasonable doubt that the sky is blue?

As a prosecutor, when I try cases, I often hear (usually from folks like federal court clerks) that my job is easy. Agents bring me cases, I can say no to the case if I don’t like it, or alternatively I can say “not yet” if I think we need more proof. Moreover, federal law enforcement agents are often among the best in the world at investigating cases. All of that is true.

Does that make my job easy?

In my efforts to praise and encourage law enforcement agents, I’ve been known to say, “my cases are so good that an untrained monkey could do my job.”

That’s not really true. The monkey needs to be trained.

My job is to convince 12 strangers that they should decide that a fellow citizen is guilty BEYOND A REASONABLE DOUBT with respect to every single element of every single charge such that the person charged should be punished.

That’s tough. Very tough. And it requires the practice of persuasion, which we’ll be discussing more as we move on.

Persuasion is a whole lot more than natural charisma and silver-tongued oratory.

It is hard work. It involves marshaling proof in a convincing fashion. Knowing the rules of evidence. Preparing witnesses. Heading problems off at the pass with pre-trial decisions and motions practice. Understanding objections. Having a handle on human psychology. And much more.

I often hear in casual conversation, “Oh he’s obviously guilty. Why isn’t anyone doing something about that?”

Is the sky blue?