Persuasion in the Courtroom: 6 Social Psychological Principles for Winning

Jonathan M. Lytle, Ph.D. / November 4, 2010

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Attorneys are the salespeople of the courtroom. Their job is to make the merchandise – the case – as appealing as possible. Yet, whereas a shoe salesperson usually must consider each customer individually, an attorney must get as many as 12 people to buy into their product. To accomplish this task, attorneys should turn to the psychology of persuasion to assist them in crafting compelling cases.

Dr. Robert Cialdini, a renowned social psychologist, has studied persuasion for nearly 30 years. Early in his career, he went “undercover” in various occupations (telemarketer, car dealer, etc.) to figure out how the best salespeople persuaded the public. He discovered that the art of persuasion can be reduced to 6 simple principles: reciprocity, commitment and consistency, social proof, authority, liking, and scarcity.

Reciprocity is our tendency to want to return favors. If a friend gets you a birthday gift, for example, you may feel obligated to remember their next birthday with a gift. This principle is often used by marketers in the form of “free” samples. Although grocers claim that free samples allow the consumer to try a new product, the true psychology of this marketing plan is that shoppers feel obligated to return the favor given to them by the store. Businesses hope that customers walk away thinking “I got something for free; I should help them out too.”

So, how can attorneys use reciprocity in the courtroom? One easy modification is to frame their interactions with the jury in a way that suggests they are doing the jurors a favor. A simple statement such as “I will be quick, because I know you all want to get back to your regular lives and families…” during closing arguments may go a long way toward compelling the jury to reciprocate the attorney’s kindness with a favorable verdict.

The second principle is commitment and consistency, which relies on the human desire to avoid cognitive dissonance. Our thoughts and actions need to align; when they do not, we feel uncomfortable and try to adjust either our thoughts or actions to make ourselves more consistent. This means that once a person takes action, it is unlikely that he or she will rescind. For example, once a car buyer signs an agreement, they are unlikely to call off the sale when the dealer tacks on additional charges for “rust proofing.” An extreme example of the power of commitment and consistency is illustrated by coerced-internalized confessions. This occurs when a suspect signs a (false) confession during interrogation and later actually begins to believe that they committed the crime – the modified belief creates consistency between their actions (signing the confession) and thoughts (“I am guilty”).

If an attorney is concerned that the jury will be biased against his or her case, it is effective to encourage the jurors to keep an open mind and withhold judgment until all the evidence has been presented. Reminding the jurors regularly of the oath they took practically guarantees a fair trial (“I promised to be fair, so my actions need to support that promise”).

Next, social proof is the idea that we tend to follow the lead of others. Years of research shows that people conform quite easily. For example, if you are walking down the street and see one person staring up at a skyscraper, you are likely to do the same. If there are multiple people staring up, you are all but guaranteed to follow their lead. Baristas at local coffee shops are known to put their own money in tip jars to start the day, since customers who see evidence of other tips will feel obligated to follow suit and toss their own change in the jar.

Social proof is most clearly seen during jury deliberations, but this is not entirely out of an attorney’s control. Knowing that undecided jurors are likely to side with the majority means that the more jurors an attorney can convince before deliberations, the more likely they are to win the case. In fact, research has shown that final verdicts follow the initial majority more than 85% of the time.

Another principle of persuasion is authority. People tend to obey authority figures, even when asked to do unreasonable acts. Psychologist Stanley Milgram famously showed that people actually administered “shocks” to another person at dangerous voltages simply because a man in a white lab coat told them to.

Attorneys are generally viewed as authoritative in the courtroom, so incorporating this principle should come naturally. Attorneys can polish their authoritative image by speaking clearly, concisely, and directly in the courtroom. Also, attorneys should be mindful of how jurors will view other figures in the courtroom, such as expert witnesses. Attorneys should spend time prepping their experts to ensure that their authority on the subject matter is clear.

The fifth principle is liking. People we like have more persuasive power over us than people we dislike. Accordingly, we are more likely to do favors for friends than strangers. A variety of factors may influence how much we like someone upon first meeting them. Two such well-researched factors are attractiveness and similarity: we are drawn to people we find attractive and to people we perceive as similar to us.

There are several ways an attorney can increase his or her likeability in court. Some mannerisms that make people more likeable are the ability to maintain eye contact, a humble disposition, and using informal speech. Although an attorney has minimal control over whether the jury likes you or your client based on attractiveness (dressing well certainly helps!), attorneys can control how similar they and their clients are to the jury. Selecting jurors who are similar to the attorney and/or the client (on any number of dimensions, including age, sex, race, etc) is generally a good rule to follow. Similarity will make the juror more inclined to like the attorney and client, thereby making the message more persuasive.

Finally, scarcity is our inclination to want what we cannot have, or what we think is in demand. Marketers regularly use this principle, notably when they advertise “limited time” offers. Similarly, cigar smokers in the United States pine for Cuban cigars. Are Cuban cigars superior to those from, say, Nicaragua or the Dominican Republic? Many cigar aficionados would argue that non-Cuban cigars are just as good, if not better. But Cuban cigars are scarce due to embargos, and therefore in great demand.

The application of this last principle in court is less obvious, but should be considered nevertheless. Research shows that withholding or censoring information makes people want that knowledge even more and causes them to hold it in higher regard when it becomes available. Attorneys should consider the ramifications of this principle when objecting to information in court. Legal psychologists consistently find that jurors not only disregard instructions to ignore certain information, but that this “ignored information” actually has a greater impact on verdicts!

These six principles undoubtedly have many more applications for you than those listed here. Attorneys should consider the psychology of persuasion when at trial and work on applying some or all of these principles. They may be amazed at how much better they are at selling their product.

Jonathan M. Lytle, Ph.D. is a trial consultant at Prolumina in Seattle, Washington. He can be reached at (206) 622-6700 or jlytle@prolumina.net