The Science of Persuasion: An Exploration of Advocacy and the Science Behind the Art of Persuasion in the Courtroom
![handle is hein.journals/lpsyr29 and id is 305 raw text is: THE SCIENCE OF PERSUASION: AN EXPLORATION OF
ADVOCACY AND THE SCIENCE BEHIND THE ART OF
PERSUASION IN THE COURTROOM
I. INTRODUCTION
Persuasion has been defined as the act of influencing the minds of
others by arguments or reasons, by appeals to both feeling and intellect; it
is the art of leading another man's will to a particular choice, or course of
conduct.' In the context of a trial, persuasion is the organization of legal
arguments and evidence within the framework of court procedures in a
way likely to cause the jury to make a certain decision.2 For decades, trial
attorneys have acted as amateur psychologists; through intuition and ex-
perience, trial attorneys have developed techniques of persuasion in an
effort to be more effective in the courtroom.3 These amateur techniques
have led to a more scientific approach to jury persuasion. One expert ob-
served that, all in all, [trial consultants] help lawyers position their cases
to juries in much the same way you would sell a bar of soap . . . . 4 For-
mer Supreme Court Justice Tom Clark has suggested that attorneys pay
attention to communications research in order to understand the kinds of
techniques that influence a jury.
Since the 1970s, volumes of scientific literature have been published
on trial advocacy and the psychological principles associated with jury
persuasion;6 continuing legal education seminars are offered in this area as
1. William C. Costopoulos, Persuasion in the Courtroom, 10 DUQ. L. REV. 384 (1972), re-
printed in PSYCHOLOGY & PERSUASION IN ADVOCACY (Louis N. Massery II, ed., Association of Trial
Lawyers of America, 1978).
2. Steven Lubet, Persuasion at Trail, 21 AM. J. TRIAL ADVOC. 325, 342 (1997).
3. Victor Gold, Covert Advocacy. Reflections on the Use of Psychological Persuasion Tech-
niques in the Courtroom, 65 N.C. L. REV. 481, 481 (1987); Thomas Sannito, Psychological Court-
room Strategies, TRIAL DIPL. J., Summer 1981, at 30.
4. Gold, supra note 3, at 481 (citing Dancoff, H-idden Persuaders ofthe Courtroom, BARRISTER,
Winter 1982, at 8, 17).
5. Daniel G. Linz & Steven Penrod, Increasing Attorney Persuasiveness in the Courtroom, 8
LAW & PSYCHOL. REV. 1, 2 (1984).
6. See generally Michael Owen Miller & Thomas A. Mauet, The Psychology of Jury Persua-
sion, 22 AM. J. TRIAL ADvOC. 549 (1999); ROBERT L. HABUSH, ART OF ADVOCACY: CROSS
EXAMINATION OF NON-MEDICAL EXPERTS (1986); ROBERTO ARON ET AL., TRIAL COMMUNICATION
SKILLS (2004) [hereinafter COMMUNICATION]; DAVID B. BAUM, ART OF ADVOCACY: PREPARATION
OF THE CASE (1986); RICHARD A. GIVENS, ART OF PLEADING A CAUSE (2004); RUSS M. HERMAN,
COURTROOM PERSUASION: WINNING WITH ART, DRAMA AND SCIENCE (1997); THE PSYCHOLOGY OF
THE COURTROOM, Ed. Norbert L. Kerr & Rober M. Bray (1982); THOMAS SANNITO & PETER J.
McGOVERN, COURTROOM PSYCHOLOGY FOR TRIAL LAWYERS (1985); L. TIMOTHY PERRIN ET AL.,
THE ART & SCIENCE OF TRIAL ADVOCACY (2003).](ViewImageLocal?handle=hein.journals/lpsyr29&div=16&collection=&method=preview&ext=.png&size=3)
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The Science of Persuasion: An Exploration of Advocacy and the Science Behind the Art of Persuasion in the Courtroom
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