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Persuading by finding what speaks to the other person

Northern Virginai criminal defense/DWI defense attorney Jon Katz focuses on winning persuasion at every turn

Dec 04, 2015 Persuading by finding what speaks to the other person

One of the greatest Blues Brothers scenes takes place in a bar when the band metamorphosizes the country/western music-loving crowd from throwing bottles at the blues-playing musicians to cheering at the ensemble’s country performance of RawhideThrough necessity to make money, the band figured out how to turn around the crowd.

Similarly, when our hero Spongebob Squarepants was desparate to find the next bus home and the Bronx-cheering ticket seller could not understand him, Spongebob recognized that adding a Bronx cheer to the end of each sentence would save the day.

As much as the foregoing examples resonate about finding what speaks to the other person, they are drawn from fiction. A great example of the same thing from real life came when Martin Luther King, Jr., pushed his prepared notes aside for his “I Have a Dream” speech, after singer Mahalia Jackson purportedly shouted to him “tell ‘em about the ‘dream,” and then transfixed the audience, and likely himself, with his dream of justice where “I have a dream” was nowhere found in the prepared text distributed in advance to the press.

Not only must we persuade by finding what speaks to and engages our audience, but in the process, we must be ready to leave the script, and to have the courage, readiness, ability, and trust and focus in the moment to do so. We need a strategy and plan (as one of my clients recently put it), readiness and framework to persuade so that we are not merely ambling through the woods on a moonless night, because when push comes to shove, every battle is in the moment, and we cannot be reading our machine gun instruction manual while real bullets are being fired our way.

Ad libbing can be scary. Some of the greatest gaffes from politicians have come from off-the-cuff remarks not vetted by their handlers. When our minds, hearts, and intentions are clean, though, it is harder for us to gaffe. And if we gaffe, we need immediately to acknowledge the gaffe, apologize for it, and move forward, so that we are respecting the audience’s intelligence by acknowledging the gaffe, showing our humanity and decency by acknowledging and sincerely apologizing for the gaffe, and empowering ourselves by next moving forward, without ignoring the gaffe, of course.

We live in a time of too many wooden-speaking politicians, whether because of overpackaging by their public relations handlers, uncomfortable in their own skin, too fearful of making an off-the-cuff gaffe, or simply unable to know how to connect with people. President Obama (whose Republican opponents were even less inspiring speakers than he) and his two predecessor Democratic presidential nominees — John Kerry and Al Gore (at least as presidential candidates for Kerry and Gore) — all sound too wooden and scripted. So does Hillary Clinton, whose husband Bill knows how to connect with a crowd. Bill Clinton’s predecessor Democratic presidential nominee Mike Dukakis was worse than the above-named candidates, because he sounded like a robot with an elusive heart, and that might be charitable. George W. Bush, who beat Kerry and Gore, never sounded very intelligent and over-engaged in oversimplifying, but he still could connect better with a crowd than Obama, Kerry, Gore and Hillary Clinton, because he usually did not sound wooden or overly scripted. His brother Jeb is another story, a wooden one.

No wonder demagogue Donald Trump resonates with so many people. As much as Trump plays fast and loose with the truth, appeals to xenophobes and racists, and exhibits limited sensitivity if even that to civil liberties,  Trump does not let his handlers package his speeches. People do not trust packaged, canned speech.

In a multi-day white collar federal felony jury trial a few years ago, where Justice Department lawyers tend to have resumes showing among the most highly-rated law schools and high law school grade point average, the second chair prosecutor read his closing argument to the jury, seemingly word for word. I am always ecstatic when an opposing lawyer speaks in this and other lackluster tones, because they do not resonate with people.

I live the magic of going to battle without reading from a script, often needing to remake my flowchart or to ditch a flowchart (as do Santana and Peter Ralston in the examples below) when time does not afford rewriting it, so that when I find myself needing to travel by stratospheres, by quantum levels, by roller coasters, or through hostile territory to persuade when unexpected and profound challenges come my way, I will be closer to my persuasive best.

One bit of inspiration for my performing in unexpected territory is that Santana was able to kick it at Woodstock when called to the stage while still high on LSD (and did LSD even help enhance Santana’s Woodstock performance that bandmembers characterized as a band essentially melding into one being?), unexpectedly being called to the stage too early to have the LSD first wear off, and with Santana feeling the neck of his guitar was slithering like a snake. The band beyond connected with the Woodstock audience before even having an album in the record stores.

I can hoot and holler all I want against a judge unjustifiably and constantly interrupting or degrading me, my client or my argument, a prosecutor arrogantly pontificating about “how it’s done in this county, counsel” or a police officer being all defensive at even my simplest completely non-confrontational questions in the hallway.  However, if I want to persuade them, I need to find what speaks to them. With the judge, it might be as simple as analogizing my argument to the judge’s favorite sport or musician, or also making the judge more uncomfortable with being overturned on appeal or looking foolish to other lawyers than simply granting what I seek. With the prosecutor, it might be suggesting that I can save the prosecutor’s time with my proposed resolution, or also making the prosecutor concerned that his or her supervisor is going to get more irritated with the prosecutor for not hearing me out or even agreeing to my request, than giving me what I request. With the defensive cop, it might be starting by talking about his backpacking trip the previous weekend and then getting back to my client’s case, or also making the officer concerned about looking to those present that s/he has something embarrassing or reputation-harming to hide. And the talk must always be genuine, including showing genuine interest in, and compassion and respect for the other person, with genuine ability for the battle, or else I will fall flat on my face.

When I talk to people with language, ideas, feeling and imagery that are familiar and comfortable to them, they will be more amenable to hearing me out. I will bolt out of a restaurant that puts in front of me a bowl of stewed prunes smothered in mustard and mayonnaise, and will run to the nearest table of a restaurant offering the most delicious vegan pho soup surrounded by likable people. I went nearly nuts against Larry Coryell’s unannounced below-plussing introductory duo performance at the Return to Forever reunion concert (at Chick Corea’s invitation at that) and transitioned into ecstasy during the entire performance of RTF. In persuading, we want to inspire people to be at their best to pay attention to what we have to say and to empower and embolden them to make decisions favorable to us even if doing so may bring scrutiny from their peers and even seemingly short or long term deficits for them (so we need to show them that the net result of coming to our side is less harmful for them than doing the opposite). That also means that we have to be paying full time and attention and attentiveness to them, so that we do not end up mindlessly serving them a proverbial bowl of stewed prunes with mustard and mayonnaise.

For another analogy, someone must have been asleep at the wheel to have surprised the audience of the 1986 Amnesty International Conspiracy of Hope concert at the Meadowlands (I was there) with Joni Mitchell interspersed between the kick-butt performance of The Police and U2. She might be very talented, but an audience all hyped up on the Police knowing U2 comes next is going to be mightily disappointed by Joni Mitchell’s appearance, with some on the grass in front of the stage responding by humming water balloons at her, which of course was wrong, but symbolized the crowd’s disappointment. Then U2 followed, and of course immediately found what speaks to the audience.

Legalese has little to no place in persuasion, except  with judges in appellate and motions practice, and even there judges sometimes can be more open to otherwise novel-seeming ideas when the lawyer throws in some relevant color and flavor. Returning to the food analogy, do you want to order a menu item described as “green leafy substances procured pursuant to a bill of sale from a common carrier” versus “one kick-butt salad with mind-blowingly fresh vegetables from the best gardens and amazing herbs”?

In some respects, it may seem more possible to find what speaks to an individual than what speaks to a group. With the individual, we are having a conversation and can make adjustments as needed. With a jury, I only hear the jurors’ words during jury selection and next at the time of the verdict. Deep listening is needed both in persuading groups and individuals, by not only listening to words (and how the words are spoken), but also by listening through body language, facial and bodily expressions, physiology, vibes and intuition. We must of course clear the proverbial earwax from our ears, mucus from our eyes, insensitivity from our skin, and distractions and data buildup in our brains, to truly and successfully listen.

In persuading a jury, the lawyer needs to find a common denominator that will speak to the entire jury or at least to as many jurors as possible. For instance, in my closing argument in one felony jury trial, in the moment I returned to my theme of humanizing my client by reminding the jurors that my client whom the prosecutor sought to convict has a beating heart; it just seemed right at the time, and seemed to fully resonate in the facial expression and spirit of one of the jurors in particular.

In another jury trial, which I won on a charge of felony possession of eight pounds of marijuana, the prosecutor’s closing argument responded to my previously underlining in opening statement and cross examination that my client looked plenty calm in the video when he got out of his car — fully contrasting the cop’s direct examination claim that my client’s carotid artery was visibly pulsing before he got out of the card — by pointing out that by the time my client got out of his car, he had already been calmed by the officer’s telling him that the officer was just going to write him a warning for running a stop sign.

Wow! This eight pound marijuana trial only came a few months after I read the now-late Wayne Dyer’s great recognition that: “When someone squeezes you, puts pressure on you … and out comes anger … that is what’s inside,” just like you can’t squeeze orange juice from an egg. With Wayne’s ideas being so widely known whether originating from or repackaged by him, I realized in the moment of trial that the foregoing concept likely would resonate with some of the jurors, and it did, as I saw some of them nod their heads, and not simply to be polite. In closing, I argued to the jury along the lines of: “My client was calm on emerging from his car, because he was calm inside the car. Emotions of nervousness cannot be so quickly and easily switched to calmness, just as if we truly are serene and calm upon waking up in the morning, someone flipping the bird at us on the road is not going to shake our feeling of well being.”

The best persuasion also comes when the persuasion flows as effortlessly as possible, backed up by much practice, intention, and focus. Watch as the late Baptist reverend John Sherfey shouts out his sermon interspersed with unintended but un-self-censored “ha’s” here and there, which my ethnomusicology teacher and Sherfey documentary-teller Jeff Todd Titon portrayed Sherfey as explaining having his words shouted out by god.

Whether or not he overstates his martial abilities in Cheng Hsin: Principles of Effortless Power, martial artist Peter Ralston hits it right on the head in this video about engaging the opponent to include following what the opponent is doing — rather than resisting the opponent — in the process of overcoming the opponent. I particularly like how Ralston in this video is not withdrawing from nor attacking the opponent too early, just as we can never withdraw from our own selves. In other words, Ralston finds what speaks to everyone as a group, including himself.

Because we all are connected, because of the smell test, and because your message is not likely to be able to convince others any more than you are convinced, if your message does not resonate with you, it is not likely going to resonate with others. Sonny Rollins perhaps realized when he started playing a lame electronic version of a woodwind (Carnegie Hall, 1978, when I was there) that the electronic instrument was diminishing from his performance for him and the audience, so he put it down, and moved ahead, and I returned to loving his performance.

In the end, the key is to connect as best we can with our opponents we seek to persuade and neutralize, and with the audiences we seek to persuade.

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