Law Tips: The Art of Legal Persuasion, Part 2 – Decision-making

All listeners arrive at the first part of communication with their own world-view…beliefs…perceptions…attitudes…biases.  Together, these beliefs and attitudes become…pre-decisions on life…

Our Law Tips faculty participant, J. J. Stankiewicz, draws on his wide experience as a trial attorney, public servant and business manager when he addresses the psychological issues involved in communicating with jurors.  I am pleased to continue this Law Tips series on “The Art of Legal Persuasion” with his insights into the dynamics of decision-making: 

Decisions
Understanding how people arrive at their choices is an area of cognitive psychology. Theories have been generated to explain how people make decisions, and what types of factors influence decision making in the present and future. The study of decision making is called “Heuristics”. Several factors influence decision making. These factors include but are not limited to past experience, cognitive biases, age, individual differences, and belief in personal relevance.

Understanding the factors that influence the decision making process is important when forecasting what decisions will be made. The factors that influence the process will then automatically impact the outcomes.  Dietrich, Cindy. “Decision Making: Factors That Influence Decision Making, Heuristics Used, and Decision Outcomes.” Student Pulse. Student Pulse, 2 Feb. 2010. Web. 12 Sept. 2012. <http://www.studentpulse.com/articles/180/decision-makingfactors-that-influence-decision-making-heuristics-used-and-decision-outcomes>.

Consistency and Peace
Current studies in decision making styles indicate an overall goal of all listeners to “fit” new information into their preconceived world view. Otherwise, new information that conflicts with their current beliefs and attitudes causes conflict and conflict causes anxiety and stress. All listeners arrive at the first part of communication with their own world-view, their beliefs or perceptions, their attitudes or biases. Together, these beliefs and attitudes become stereotypes, or pre-decisions on life, the world, right, wrong, fair, and unfair. These stereotypes are usually life-long ingrained results of parental mandates, formal schooling, television and, most importantly, personal experience. These attitudes and beliefs have been enforced life-long and so they change, if at all, very slowly.  Mauet, Thomas  A. “Trial Techniques” (7th ed. Aspen Publishing, 2007).

Anxiety and Stages Decision
The stage of trial also influences the anxiety level of the listener to possibly reject new information. For example, the new juror, during voire dire may be highly anxious and therefore resent public questioning. A trial attorney in a jury trial may therefore opt for written questions rather than oral interrogation.

Filter Effect
The attitudes and beliefs of an audience, subconsciously, act as a “filter” for all new information from the sender. This general view of the listener will select out conflicting information and, usually, fill in any gaps for missing information. In short, the audience never has an “open mind” and is rarely receptive to new ideas. The comfortable prior world-view is reinforced and a comfort level is maintained.

Evidence Making It Fit
The listener in most cases is thought to “test out” all new information to see if it is consistent, at peace with, the listener’s preconceived ideas of how life works. Depending on the type of listener (Affective vs. Cognitive), the decision about this new information is either made at the outset, or is held and deferred. Subconsciously, the listener will use his or her attitudes and beliefs to either accept, reject, or distort all new evidence. This allows the listener to arrive at a complete and consistent plausible story of events.

Individual Versus Group Decisions
Unlike trials to a Judge, trials to a jury are unique because they involve both individual decision making as well as a group decision making process. And a juror will undergo an emotional slide usually from high anxiety at voire dire to lesser stress by the time a closing statement is given. This is rarely true of a Judge. In the case of the “affective” individual juror, the “filtering” process is thought to occur very early in the trial; almost at the outset. For this juror, all remaining evidence is “filtered” to fit the early decision of what happened- the better reality version of two (2) stories.

The jury room, however, will inject new anxiety into the process because of the group decision making dynamic. In this case, studies have found that ultimate final decision rests between those known as “Persuaders” (25%), “Participants” (50%), and “Non-Participants” (25% ). The trial attorney must therefore be attune to this double decision-making process and be attune to these key members on the group decision.

In concluding his remarks on the Art of Legal Persuasion, J. J. Stankeiwicz offers these comments:

All communication is based on perception. It is an active process for both the sender (attorney) and the receiver (Judge or jury). The receiver is part of the active process and no messages will be effective unless the message intended to be sent is the same one as the Judge or jury actually receives.

Techniques that may increase communication include the sender’s credibility and dynamic status as well as the audience’s capacity to receive. Recall that current studies indicate most receivers have a limited attention span of fifteen (15) minutes (e.g. T.V. shows-1/2 hour), that there is no interest to learn more, and little patience to await a final decision.

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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.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page. Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you on Law Tips.

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