Law Tips; The Art of Legal Persuasion, P1; Differenct Types of Listeners

…the alternative methods for communicating to the different types of listeners were found to make a difference regarding how long the new information was retained by the audience…

Communicating inside a courtroom is the business of J. J. Stankiewicz. In his CLE presentation on Trial Tips: The Art of Legal Persuasion,” he provides important insights on the behavioral psychology that sets that stage. It’s my pleasure to kick-off this Law Tips series with Mr. Stankiewicz background on listeners:

Based upon the more recent studies performed by educators and psychologists, it was found that the dynamic of the listener, the receiver of information, was not static or blank. In fact, the quality and quantity of what was received depended equally if not more on the listener rather than on the characteristics of the speaker. Research into communication for teaching students, for example, found that students learned in different ways and did not come to the learning table open and ready to absorb all information. J. Diane Conell, Ed.D., “Brain-Based Strategies.” Scholastic Inc. 2005.

Eventually, the new learning theory concepts were applied to the area of trials and its implications spawned new approaches and techniques for communicating inside a courtroom. This new application to the law resulted in findings that overall there are two basic types of trial audience: the “Affective” and the “Cognitive” listener.

Are you Affective or Cognitive?

Brain-based studies, along with research by psychologists, concluded that all persons are able to be divided into two types of listeners and decision makers. The “Affective” type of decision-maker has certain traits that contrast sharply with how the “Cognitive” type of decision-maker processes trial information. Most persons fall into the “Affective” category. It is thought that this group uses his or her right side of the brain to make decisions. This listener is emotional, creative, and interested in people rather than legal issues, and views a trial as a human drama rather than an abstract issue. Reasoning is deductive, and requires a small amount of facts before reaching a decision. This listener quickly attributes cause and effect. Once decided, this listener commits to the decision by “fitting” in later facts to the earlier decision.

“Cognitive” decision makers, on the other hand, are thought to reason with the left side of his or her brain. This listener is more interested in abstract issues than people, enjoys waiting and not deciding until all evidence is received, and uses inductive reasoning to reach an eventual logical decision.   Mauet, Thomas A “Trial Techniques” (7th ed. Aspen Publishing, 2007)

These new learning theories can be thought of as concepts, or maps of how new information (e.g. evidence) will be received, reprocessed, and/or stored. It involves the cognitive, emotional, and prior experiences to either obtain reinforcement or a change (persuasion) in how the listener sees his/her world and the decision involved.

There are three such categories of learning theory: behaviorism, cognitivism, and constructivism. Behaviorism focuses only on the objectively observable aspects of learning. Cognitive theories look beyond behavior to explain brain-based learning. And constructivism views learning as a process in which the learner actively constructs or builds new ideas or concepts.

Likewise, the alternative methods for communicating to the different types of listeners were found to make a difference regarding how long the new information was retained by the audience. The three different methods with adult learners has been summarized by one researcher as follows: 1) Tell someone something and they remember 20-25% of what they heard (Teach); 2) Tell and also show them and they remember 40+% (Train); 3) Tell, show and have them participate in an exercise and they remember 70% (Facilitate); and 4) Teach the topic and they remember 95+%.   Twombly, Craig. “The Three Methods of Learning.” (Ezine Articles, 30 June 2010. Web. 3 Sept. 2012.) 

Are you listening attentively now? Great! I thank JJ for his contribution to Law Tips  and look forward to continuing our series with Mr. Stankiewicz’s discussion of behavioral psychology and trials. Next week he delves further into understanding how people arrive at their decisions.    

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Our Law Tips Faculty Participant:
J. J. Stankiewicz has practiced law in Lake and Porter County, Indiana since 1973.  A widely sought counselor and trial attorney, Mr. Stankiewicz has enjoyed a diverse practice which has encompassed interim public service appointments. These have included prior appointments as special municipal corporation counsel, public safety Director, Civil Service Commissioner, and County Election Commissioner. In turn, his management experiences have included appointments as regional manager for a national title insurance company, and corporation counsel. His practice is now concentrated in the areas of real estate, family and personal injury law.

About our Law Tips blogger:
Nancy Hurley, Law Tips blogger, has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

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ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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