May 28, 2020 Practice Points

The Art of Persuasion

Ways we can enhance our persuasion skills in trial and appellate courts by using principles of classical rhetoric.

By Young Advocates Committee

Paul Mark Sandler is a veteran trial lawyer, and author of publications such as Anatomy of a Trial: A Handbook for Young Lawyers, and Model Witness Examinations. He is of counsel with Shapiro Sher Guinot & Sandler, an active member of the ABA Litigation Section, and a fellow in the American College of Trial Lawyers. In his most recent publication, The Art of Persuasion, Sandler discusses how we can enhance our persuasion skills in trial and appellate courts by using principles of classical rhetoric, and giving attention to style and delivery. A full audio recording of highlights from The Art of Persuasion is available online. Below are a few takeaways:

  1. Focus on your goal. What do you want the court to do? How do you want the court to respond? A winning argument is always goal-directed and your goal should be your guiding light in preparation. This means that you must understand (1) what you want to accomplish, (2) why it is important, and (3) how to best convey that to the court.
  2. Tailor your argument to the decision maker. One of the most important features of persuasion is understanding to whom you are speaking. Having a receiver-centered approach means understanding the community and courtroom in which you will be presenting your case. Consider conducting background research early in your preparation and/or using tools such as mock juries or mock trials.
  3. Cultivate ethos. Ethos is the listener’s perception of your character. In writing a brief or presenting your argument, it is important to take the high road and present yourself with honor and integrity.
  4. Base your arguments on reason. The two main aspects of reason or logic are deductive reasoning (drawing a specific conclusion based on generalities) and inductive reasoning (the process of going from specific facts to a general conclusion). Using logic in your argument will increase its persuasive power, and can also assist you in spotting red herrings from the opposition.
  5. Build with evidence, law, and policy. Evaluating theories and themes that relate to the betterment of society and development of the law can assist you in persuasion. For example, are there societal obligations or duties that you should raise in your argument?
  6. Appeal to emotion. Voice inflection, visual presentations, and your choice of language can appeal to emotion; but be careful that you don’t overdo it.
  7. Use the best medium for the message. Demonstrative evidence (such as pictures or PowerPoint presentations), when used properly, can be a powerful tool to connect with your audience. Take care to avoid the professorial approach—ensure that you are not turning your back to the jury and reading from the presentation.
  8. Strategically arrange your arguments. Establish a strong structure for your argument. Classic orators like Cicero were very keen on the arrangement of their arguments. At its core, every argument should have a beginning, a middle, and an end.
  9. Argue with style. What is style? Style is the choice words that we use to express ourselves and the arrangement of those words. In finding the appropriate language to use, develop a style that is natural for you. Classic literary authors, such as William Faulkner, provide excellent examples of linguistic style that can make arguments sizzle.
  10. Use delivery to enhance your argument. Delivery is your movement in the courtroom. Appellate courtrooms may require you to stand at a podium while presenting your argument, whereas a trial courtroom may allow you more flexibility to move and gesture. Prepare for how and what you will communicate with your delivery.
  11. Engage your listener. Have your listener work with you and be a partner for what you are trying to achieve.
  12. Immunize and refute opposing points. Bring to the surface opposing points and refute them so that when your listener hears from your opponent, your listener already has in mind what the response will be. Don’t wait for the other side to attack.

You may obtain a free copy of The Art of Persuasion by emailing your request to Paul Mark Sandler at pms@shapirosher.com. See also, The 12 Secrets of Persuasive Argument, Waicukauski, Sandler, and Epps (ABA Publishing 2009). 

— Young Advocates Committee


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