Thank you for sharing!

Your article was successfully shared with the contacts you provided.
In the early 1950s, three members of the Psychology Department at Yale University conducted a series of experiments relating to persuasion. In one of the experiments, two test groups were exposed to the same communication, which attempted to answer the question: “Can a practicable atomic-powered submarine be built at the present time?” One of the groups was told that the source of the communication was Robert J. Oppenheimer, the famous physicist and the “father” of the atomic bomb. The other group was told the communication came from Pravda, the Communist Party of the Soviet Union’s official newspaper. Although the communications were identical, the groups hearing them evaluated them through entirely different lenses. Ninety-six percent of the group believing the communication came from Oppenheimer considered the author “fair” in his presentation, and 80% felt the author’s conclusion was “justified” by the facts. But only 69.4% of the group believing that the communication came from Pravda thought the author’s presentation was “fair” and only 44.4% thought the author’s conclusion was “justified” by the facts. Identical communications, dramatically different responses. The three Yale researchers were Carl I. Hovland, Irving L. Janis and Harold H. Kelly. The result of their experiments are found in Communication and Persuasion (Yale University Press, 1953). Lawyers need to guard their credibility scrupulously The result of this Cold War experiment would have been no surprise to Aristotle, who understood the principle at issue more than 2,300 years ago when he wrote in The Rhetoric: “Persuasion is achieved by the speaker’s personal character when the speech is so spoken as to make us think him more readily credible. We believe good men more fully and readily than others: this is true generally whatever the question is and absolutely true where exact certainty is impossible and opinions are divided . . . .It is not true, as some writers assume in their treatises on rhetoric, that the personal goodness revealed by the speaker, contributes nothing to his power of persuasion; on the contrary, his character may almost be called the most effective means of persuasion he possesses.” If I could ask Aristotle one question, it would be this: If the personal goodness of the communicator is so essential to his or her power of persuasion, why have some of history’s most vicious and bloodthirsty rulers been such effective communicators? Since I am unlikely to have the opportunity to pose that question anytime soon, let me proceed on the solid assumption that the credibility of the communicator is a key component of successful advocacy. And let me explore the simple question: Why? Do not think this discussion is of theoretical interest only. It is of crucial importance to every practicing lawyer, wherever they may be and whatever sort of legal work they do. Experienced lawyers and judges will tell you that credibility is the single most precious asset a lawyer possesses in a case, and over a career. All lawyers need to guard their credibility scrupulously, because, once it is lost, it is impossible to recover. It is possible to build an entire theory of successful advocacy around one proposition: everything that enhances credibility is a good thing and should be encouraged, and everything that detracts from credibility is a bad thing and should be discouraged. There is, of course, no simple or perfect answer to the question of why credibility is so important. I would be interested to hear from readers on this subject. But my view comes down to understanding this fundamental principle of persuasion: changed attitudes are self-induced, not the result of heavy-handed, coercive appeals. That is, the persuasive advocate is able to appeal to one, or more, of the audience’s cluster of beliefs, emotions, and allegiances, triggering something inside the audience that produces a particular way of viewing a bundle of facts, circumstances and human interactions. Stated otherwise, the effective advocate does not superimpose his or her own beliefs on the audience, pushing decision-makers to come to conclusions with which they are uncomfortable. Rather, persuasion is a more subtle process, in which the decision-maker is gently led to view things as the advocate wants. Think about your daily life, particularly in the context of a desire to obtain information from someone, or make a purchase. Think about the first moments of contact and communication with someone you have not met before. Instantaneously, and to some extent unconsciously, you start making judgments. Do you like the person? Do they seem authentic? Do you trust the person? Is what the person says believable? Would you feel comfortable relying on what the person says? Does the person seem logical and reasonable in what they assert? Are his or her assertions supported by credible evidence? Very quickly, an initial opinion forms. Soon, you make a gut decision about whether you would buy the proverbial used car from this person. If you would not, your defenses go up, your willingness to be open goes down, and the interaction takes on a certain defensiveness. But if you do trust the person, you find yourself on a different trajectory. You find yourself opening up to what they say. The same is true in a legal context. When you establish yourself as a credible communicator � one who is prepared, accurate, honest, fair, knowledgeable about legal and factual issues, courteous and professional � what you say is more likely to be believed. To use an analogy, you are taking bricks out of your advocacy wheelbarrow and your job of persuasion is lighter. But when you fail to establish your credibility, you are adding bricks into the wheelbarrow and your job of persuasion becomes much more onerous. Adding bricks is never a good thing. Consider the two obvious consequences of a loss of credibility in front of a court or a jury � or any groups of decision-makers. First, when you are not credible, the decision-maker loses confidence in you. Once you have demonstrated that you are not trustworthy, or that what you say is not accurate or truthful, as to Issue A, the odds are that you will not be believed on Issue B. This brings to mind the jury instruction that judges give to juries all the time: “If you find that a witness has been untruthful as to one issue, you may choose to believe some, all or none of that witness says as to other issues.” Therefore, when you lose credibility on one issue, your ability to persuade as to other issues is radically diminished and your ability to succeed in your case is substantially, sometimes fatally, undermined. The opposite, of course, is also true. If the decision-maker finds you credible on Issue A, they are more likely to be predisposed to find you credible on Issue B. Second, in the long run, your reputation in the community of lawyers with whom you practice, and judges before whom you appear, is compromised. Connecticut, where I live and work, is a relatively small state with a comparatively small bar. It does not take long for a lawyer to gain a reputation as someone whose word can be trusted. It also does not take long for someone to gain a reputation as someone who needs to be watched closely. Word travels fast in most legal communities. Just as lawyers talk about judges, so do judges talk about lawyers. Just as in school, bad reputations hard to shake If a lawyer believes that another lawyer is not as good as his or her word, he or she will communicate that to colleagues. And if a judge has a bad experience with a lawyer, you can be sure that other judges will be warned to be careful. You never want to be the lawyer who doesn’t know that he is wearing an invisible “Do Not Trust This Person” sign around his neck. Remember the kid in high school who was quickly labeled by teachers as never prepared? Once reputations are established, they are hard to shake. This is as true in the legal field as in any other arena. In real estate, it is often said that the three key considerations relating to the sale of property are: “location, location, location.” In advocacy, the three factors at the heart of successful advocacy are “credibility, credibility, credibility.” So take the high ground. Candor, professionalism and accuracy should undergird everything you say, write and do. You should work tirelessly to build a reputation as a credible, competent, trustworthy lawyer with your colleagues and with the bench. The alternative is really no alternative at all. Douglas S. Lavine, a judge on the Connecticut Appellate Court, is the author of Cardinal Rule of Advocacy (NITA 2002) and Questions from the Bench (ABA Section of Litigation 2004).

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.