For the Defense - Vol. 9, Issue 4 - 7

attorneys, this distinction is critical. You're not simply appealing
to a juror's conscious reasoning; you're also engaging their
subconscious, which is influenced by emotions, past experiences,
and instinctual reactions.
When crafting persuasive arguments, it is important to
acknowledge that the unconscious mind governs decisions that
people may not even realize they're making. This is why the
most persuasive advocates focus on both logic and emotional
storytelling. The unconscious mind processes emotional signals
far more readily than analytical reasoning, meaning that the
most memorable arguments are often those that tap into
listeners' emotions.5
Persuasion ≠ Manipulation
I want to offer a quick disclaimer: persuasion is not the same
as manipulation or gaslighting. So, what's the difference?
While both persuasion and manipulation involve influencing
someone's thoughts, beliefs, or actions, they differ significantly
in intent, transparency, and ethics. Persuasion seeks to change
someone's mind or guide their actions through reasoning,
evidence, or emotional appeals, but always in a way that
respects the autonomy of the listener. Even when emotions are
involved, persuasion allows the individual to make their own
decision without undermining their confidence or distorting
their perception of reality.6
A persuader is transparent about
their goal-whether it's to convince someone to change their
mind, deliver a verdict, or make a purchase. For example,
a teacher ethically persuading students about the value of
education might explain its long-term benefits.
Manipulation, on the other hand, aims to control or influence
someone's behavior for the manipulator's gain, often at the
listener's expense. The manipulator employs deceit, half-truths,
or withholds crucial information to achieve the desired outcome,
all while preventing the other person from fully understanding
what's happening. This lack of transparency makes manipulation
inherently unethical. A manipulative tactic might involve using
guilt or flattery to coerce someone into doing something they
wouldn't otherwise agree to.
Gaslighting is an extreme form of manipulation, where the
goal is to make the target doubt their own reality or even their
sanity.7
The term originates from the classic 1944 film Gaslight,
starring Ingrid Bergman and Joseph Cotton.8
Ultimately, ethical persuasion respects the individual's
autonomy,
while
manipulation
and
gaslighting
rely
on
deception and control. You might wonder if this distinction
really matters-aren't persuasion and manipulation just
different names for the same thing? The answer lies in ethics,
and this idea isn't new. More than 2,000 years ago, the Roman
orator and philosopher Cicero emphasized the importance of
moral character and knowledge for speakers, advocates, and
politicians. He understood that while persuasion can influence
crucial decisions, when wielded by unprincipled speakers, it can
endanger entire communities.9
persuasion is a lesson as old as rhetoric itself.
The Neurological Process of Persuasion (explained in 130
words or less)
When a person encounters a persuasive message, their brain
undergoes a complex process. First, the message must capture
attention-an increasingly difficult task in an era of short
attention spans. Next, the brain processes the message through
the occipital lobe (if visual) or temporal lobe (if auditory), and
it then engages the prefrontal cortex to analyze the content.10
Crucially, if the message triggers an emotional response, the
amygdala becomes active. This emotional response heightens
the brain's retention of the message.11
dopamine and oxytocin play key roles: dopamine reinforces
behaviors by creating a sense of reward, while oxytocin builds
trust and empathy.12
In a courtroom, understanding these
chemical processes allows you to craft arguments that not only
appeal to reason but also forge emotional connections with
jurors.
Why Is It So Hard to Persuade?
If persuasion is a constant presence in our daily lives, why do
we, in our roles as advocates, advisors, parents, partners, friends,
employees, and supervisors, sometimes struggle to persuade
others? I've identified a few key reasons for this challenge.
First, we have lost sight of the art of persuasion, often viewing
the world as a nail and ourselves as the hammer. We may think
that all we need to do is convince our audience that we are
right and then repeatedly emphasize that point ( " hammer it
home " ). However, is this truly persuasive advocacy? It is not. As
Kendra Cherry notes in her article, " How to Become a Master of
Persuasion, " the ultimate goal of persuasion is " to encourage
the target to internalize the argument and adopt a new
attitude as part of their core belief system. " 13
This is precisely
what we aim to do as advocates: we strive to influence our
audience-whether they are judges, jurors, arbitrators, clients,
or witnesses-to behave in a certain way, reach specific rulings,
acknowledge particular facts, or agree to non-trial resolutions
and settlements.
Next, though it pains me to admit this as a law school professor,
I attribute the disregard for persuasive advocacy to our legal
pedagogy. Law school curricula emphasize legal analysis and
the dissection of doctrinal principles from appellate cases which
have been stripped of the emotion, human conflict, pathos, and
drama that are integral to their narratives.14
As a result, we have
overlooked the emotional aspects of persuasion-or worse, we
have been taught to undervalue their importance.
Another factor that complicates our ability to persuade is the
ever-shortening attention spans we face. Listening and paying
attention have become increasingly difficult tasks. The average
adult human brain weighs around three pounds but consumes
a significant amount of glucose, oxygen, and blood flow. As
the brain processes new information, millions of neurons fire
simultaneously, expending energy and leading to fatigue.15
In fact, the act of listening can be as draining as engaging in
intense cognitive effort, like studying for an exam. Given this
reality, we must be disciplined in what we communicate because
we have a limited window to make an impactful statement.
This concern for the ethics of
Is it feasible to make a lasting impression in such a short time?
Absolutely. Consider the average Super Bowl commercial, which
often sparks conversations for weeks despite lasting only 30
seconds. TED Talks are capped at 18 minutes, regardless of the
speaker, whether it's Bono or Mother Teresa!16
John F. Kennedy's
inaugural address, with its famous line, " Ask not what your
country can do for you, ask what you can do for your country, "
was delivered in just 15 minutes.17
Martin Luther King's iconic
" I Have a Dream " speech lasted 17 minutes, and Abraham
Lincoln's delivered all 272 words of his Gettysburg Address in
Vol. 9, Issue 4 l For The Defense 7
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