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It is said that Milton Berle would begin his comedy routines by telling five different one-liners, each a different kind of joke. He would gauge the reaction to determine if the audience was in the mood for frivolous jokes, humor with a political tinge or something a bit off-color. Depending on the response, he would then draw upon his huge store of humor to emphasize jokes that he thought would appeal to the particular audience he was facing. The great comedian’s instincts provide a wonderful lesson for all advocates. He knew that not all audiences are alike, and that the success of his performance depended, in part, on his ability to target his routine to the audience’s proclivities. One of the key attributes of persuasive advocacy is an ability to know your audience, and then tailor your appeal to its needs and predispositions. Determining what types of appeals will be persuasive to different audiences is no easy task. It requires an advocate to call upon all of his legal training and human skills. The advocate must know his case, factually and legally, well enough to extrapolate the arguments that will resonate with the audience he faces. And he must attempt top empathize with his audience � really put himself in the audience’s shoes so that he can understand which appeals will hit home and which appeals will fall flat. Abraham understood persuasive advocacy well Abraham understood this as well. After a variety of tumultuous events described in the Old Testament, God had decided to destroy the cities of Sodom and Gomorrah. As it is related in Chapter 18 of Genesis, beginning at verse 23, Abraham, in the role of advocate for the two marked cities, addressed his plea to God directly: “Will you really sweep away the innocent along with the guilty? Perhaps there are 50 innocent within the city, will you really sweep it away? Will you not bear with the place because of the 50 innocent that are in its midst? Heaven forbid you do a thing like this, to deal death with to the innocent along with the guilty, that it should come about: like the innocent, like the guilty, Heaven forbid for you? The judge of all the earth � will he not do what is just?” YHWH is persuaded by Abraham’s plea, and decides to spare the cities if 50 innocents can be found. But Abraham is not done. Like many good advocates, he senses that he can push his argument a bit further. He continues: “Now, pray, I have ventured to speak to my Lord, and I am but earth and ashes: Perhaps of the fifty innocent, five will be lacking � will you bring ruin upon the whole city because of the five?” YHWH responds that he will not bring ruin on the cities if 45 innocents can be found. Abraham pushes on and on until he has persuaded God that if 10 innocents can be found, the cities should be saved for the sake of the innocents. Unfortunately for the sake of the people of Sodom and Gomorah, not even 10 innocents can be found. Two of God’s angels visit, following which both cities are destroyed. But notwithstanding the unfortunate outcome, Abraham has argued his case well and understood his audience’s needs. Every case is different. Every person is different. Every group of people is different. When it comes to fashioning a persuasive appeal, one size does not fit all. These obvious observations lead to a fundamentally important statement about advocacy: Every appeal, to be truly persuasive, must be specifically tailored to the audience to which it is directed. What does this mean in the real world? It means that an argument that might be successful with Judge Jones might fall flat with Judge Smith. It means that an arcane legal argument that might appeal to an appellate court might bring nothing but blank stares from a jury. It means that the job of the conscientious advocate is to design an argument with the particular needs of the audience in mind. This in turn means that the effective advocate must learn everything possible about the audience or individual he or she is facing. In the context of a jury trial, of course, information can be gleaned during voir dire. When arguing to a tribunal or panel of judges, or an individual judge, it means learning all about the decision-maker’s leanings. Lawyers should research the track records of judges, reading, minimally, every opinion relevant to the topic at hand. There are few mistakes more damaging than disparaging a decision only to learn that the judge sitting on the bench was the author of the decision, or concurred in the result. To make the advocate’s task more challenging still, it must never be forgotten that we are all a part of numerous communities and peer groups, and that some of our strongest instincts are rooted in our group affiliations. Some of the groups we affiliate with � such as our families, ethnic groups, professional associations � exert a strong hold on our loyalties. Other groups exert less of a hold. To a greater or lesser degree, however, we are all influenced by the groups of which we are a member. The advocate who tailors an argument to an individual, without consideration of the person’s group affiliations and loyalties, may significantly misdirect his or her appeal. For example, in one experiment, a class of students at a progressive teachers college was exposed to a tape-recorded speech urging a return to traditional classroom techniques. The experimenters interspersed applause into the speech. Half of the subjects were led to believe that the applause came from the original audience; the other half were told that the applause came from other members of their college group. The subjects who were told that the applause came from their colleagues were more influenced by the speech than the other group. The experimenters concluded that “group-anchored” opinions can be altered by leading group members to believe that other group members had changed their opinions. As psychologist Arthur Cohen wrote: “[T]hose who place a high value on their membership in a group are most vulnerable to threats of social punishment from the group, inasmuch as they have the strongest motives to maintain friendly relationships with fellow members and the strongest desire to secure the prestige and privileges associated with their status as members.” Moe Levine, the legendary trial lawyer, put it this way. He said that the trial lawyer should never forget that after the trial was over, a juror would inevitably discuss a case with his family. Levine said it was the lawyer’s job to imagine that discussion and persuade the juror with an argument the juror could proudly defend to her or her family. This is a wonderful insight and wonderful advice. No juror wants to be vilified by his family after a trial is over. That group affiliation � family � has the potential to trump almost every other consideration. One more complication: group values and norms Let me mention one more complication. The values and norms of different groups to which we belong sometimes conflict with each other. A tough business decision by a corporate executive might win him plaudits from the board, but frowns at home or at church. A position that might win approval at the union hall might be met with derision from a local charitable organization. An assertion that appeals to the judgmental or critical instincts might fall flat if someone’s primary group association is with people who place a premium on compassion or forgiveness. So the persuasive advocate must untangle this web as well when envisioning an argument. Truly, properly targeting an argument to a particular audience is easier said than done given the complexity of human decision-making. Let’s return to Abraham. Notwithstanding the fact that God destroyed Sodom and Gomorrah, I would judge his advocacy to have been excellent. Abraham knew his audience. He could have appealed to God as the creator, the destroyer or the source of all things. But he appealed to God as the “judge of all the earth” who would “surely do what is just.” He built bridges to his audience by acknowledging his lowly status. And he pushed his argument to the limit, demonstrating two other attributes of successful advocates: intuition and courage. By the way, the fact that Abraham’s putative clients in Sodom and Gomorrah were destroyed illustrates another truism that all practicing lawyers sooner or later learn to their chagrin: even the most persuasive advocate in the world can’t help clients who won’t change their behavior. Douglas S. Lavine, a judge on the Connecticut Appellate Court, is the author of Cardinal Rules of Advocacy (NITA 2002) and Questions From the Bench (ABA Section of Litigation 2004).

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