Let's return for a moment to what I
just said. If you pay attention to the Sympathy Rule, you won't get
into a confrontation with your factfinder. Most trial lawyers
go barging into confrontations with the factfinder as a matter of
course. They create them all the time:
"You can't convict my client,
ladies and gentlemen!"
("Can't we now?" think the jury.)
"You couldn't possibly . . .,"
says the lawyer.
("Oh no?" say their faces.)
"You will have to . . ."
("Will we now?")
The rule is simple. You push and
they'll push back. You pull and they'll resist. You demand and they'll
refuse you. You insist and they'll turn you down. Newton's Law of
Motion isn't just a scientific law: it's an accurate description of
human response as well. An action almost invariably produces its equal
and opposite reaction, and it's one of the most important practical
rules of persuasion and advocacy.
If you think intently about this, you will see how to avoid trouble.
Instead of demanding, you invite. Instead of telling, you suggest. You don't
insist they look at something: you suggest they might find it helpful if they did. You don't pull,
you lead, and you lead gently.
Stick and carrot has no place in advocacy: it's exclusively carrot.
The more you think about Newton's Rule, the better advocate you
become. It is the most important rule of all when it comes to the
question of persuasion. Not only does Newton keep you out of
trouble: it can be used to tremendous advantage.
"You probably won't feel that this is terribly important, ladies This
isn't a subtle advocate's trick. It is a rule of human conduct. If you
know and think about Newton's Rule, you'll relate to your factfinders
far better, you won't offend them, and they'll listen far more
willingly.
This is such an important rule that I feel it's worth giving you a
slightly fuller illustration. Let's take a common situation that
arises, again, in a criminal case--criminal cases often furnish the
best illustrations. The line the defense are taking is that the police
are telling a pack of lies and that all of their testimony is a
fabrication. Macho trial lawyers normally slam into the jury in their
final summations, telling them that the police were lying, the whole
thing is a travesty, they can't convict, etc.
Do you know what the average juror feels when she hears that? The
average juror has never had a brush with the law. The only time she
had a real encounter with a police officer was when she got a ticket
for a traffic offense she had committed, and, although he gave
her a ticket, the officer was polite and even a bit regretful. To the
average juror the police are the saviors, the people who protect. They
are the good guys.
Tell the average jury that the police are the villains and you go
against their belief system. It disturbs them: they don't want to
think that. If you ignore Newton's Rule at this point you are likely
to create a confrontation. But if you do think about Newton's Rule,
you almost certainly avoid the danger. How about this as an
illustration:
"Ladies and gentlemen, one unhappy
thing about this case is that I've had to suggest the police have
been deceiving us. Not a pretty idea, is it? Not something any of us
want to admit, the thought that the police who look after this city
of ours, who make it safe for us to sleep at night, might have among
them officers who are willing to lie to judge and jury so as to get
someone convicted, officers who are prepared to stretch and bend the
law. We'd rather not think about it. Far easier to turn our backs on
the possibility as we turn away from other unpleasant thoughts.
Shall we do that? Shall we say, 'He's a police officer: he couldn't
possibly have been lying!'? Or shall we look together, carefully, to
see whether someone's been trying to pull the wool over our eyes?"
There's no risk of confrontation there.
We haven't pushed once, we haven't pulled, and we haven't trampled on
their natural prejudices. Far from it. We've adopted their
prejudices as our own. We've been talking their language and they
know it. We avoided all equal and opposite reactions until the end,
and then we used them in our favor. "Shall we turn our backs on this
possibility?" we asked. What can the jury silently reply to that
except, "Of course not." "Shall we assume . . . ," brings an almost
automatic equal and opposite: "No."
And we also suggested that someone may have been trying to pull the
wool over their eyes. What is their reaction bound to be--"Well,
they're not going to succeed!"
Think Newton. Let Newton become part of you. He'll keep you out of all
kinds of trouble and make a real advocate out of you.
Did you notice another thing we were doing in that little
illustration? We were placing ourselves firmly on the same side as the
jury. It wasn't a case of advocate here and jury over there. It was a
case of we, not you. Shall we assume? Shall we
turn our backs on it? Were lies being told to us?
