August 15, 2023

Podcast - The Differences Between Persuasion and Argument

The Trial Lawyer's Handbook: A Courtroom Preparation Podcast Series

In this episode of his "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small discusses the differences between persuasion and argument that every trial lawyer should know. In the episode, Mr. Small explains why persuasion and facts are invaluable in the courtroom.

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The point of courtroom advocacy is to persuade. That's easy to say, but hard to do. Persuasion and argument are not the same thing; of course, the right argument can help persuade. Every trial lawyer should understand the difference between persuasion and argument, and be focused on persuasion. Trying to persuade the jury, not "arguing" the case, or with the other side, or with witnesses, or anyone else.

Persuasion vs. Argument

As a general rule, cases are decided on the facts. Persuasion is normally accomplished by eliciting the facts (that is, putting them in evidence), marshaling the facts (that is, putting them in the right order and framing them the right way) and persuading the jury why those facts require a particular conclusion.

For example, "The plaintiff is faking her injuries" is simply an argument. Standing alone, it does little to persuade. It might even do harm, if the jury thinks there's nothing behind it and the lawyer is just blowing hot air.

However, the same conclusion, built on a foundation of facts, can be very persuasive. For example, Mrs. Jones reported no pain, or even discomfort, at the time of the accident. She was seen walking around normally after the accident. She did not go to a doctor until two weeks after the accident. She only went to a doctor after she consulted a lawyer. She never saw any doctor, other than the one her own lawyer hired. She never had an X-ray or an MRI. She never took any medicine stronger than Ibuprofen. She never even asked for anything stronger. And so on.

Ideally, the lawyer can build a litany of facts in such a compelling manner that he or she hardly needs to argue the point. The most impactful persuasion is persuasion that lets the jury get it on their own.

Persuasion is not something that occurs only during the closing argument. A surprising number of lawyers are content just to get the evidence "in," and leave it at that. You haven't done your job. How the facts are presented during the testimony matters just as much, and usually more, than how the case is argued at the end.

With rare exceptions, the best and most persuasive ordering of the facts is a narrative: a story in which people, events and concepts are introduced and described in a sensible progression.

Telling a Clear Story

Trials are not always conducive for story-telling. The evidence comes in through different witnesses, documents and other evidence, and the language is that of question-and-answer, not narrative. If the jury needs to follow the story line (and why wouldn't they?), it is the lawyer's responsibility to make the narrative as clear as possible.

Normally, the narrative should be presented in chronological order. Why? Because a chronological narrative is easier to follow and, therefore, easier to understand. And because jurors like it that way. It's human nature to want to know "what happened next," and the answer to that question is, by definition, a narrative.

In fact, if you don't give the jurors a narrative, or don't give them one that fits all the facts, they'll probably create their own. During deliberations, they'll say things to each other like:

 "Here's what I think really happened …"

 "This is what must have happened …"

Is that what you really want? Telling a clear story is not always easy. It might be a complicated story, with lots of twists and turns. It might require a lot of background and context to understand. You might have only part of the story, with some big gaps. None of that is an excuse for not telling the story as best you can.

Sometimes, your side doesn't really have a story. In a criminal case, for example, the defense may have no real option but to try to poke holes in the prosecution story. As one judge said to me when I questioned the defense's story, he said, "Mr. Small, I think the defense's story is 'Prove it.'" Still, it's your job to put the facts in a persuasive order. Don't leave it to the jurors to sort it out on their own.

Trials are largely, if not entirely, about facts. You're there to persuade, not to argue, and nothing persuades as well as the facts.

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