Secret Sway

First published in the ABA Journal, September 2001 by Terry Carter.

More lawyers are using neurolinguistics to present their cases to jurors, with winning results.

Watch plaintiffs lawyer Howard Nations when he talks to a jury about damages for mental anguish. He moves to the same place in the courtroom each time, then avoids it when not discussing damages. His voice has the same tone, pacing and inflection each time. He uses the same gestures. He points to the same chart detailing the particulars of the loss.

Watch Howard Nations. You can keep your eye on him, but if you are a juror it is possible that your conscious, rational mind lost sight of Nations as he slipped inside your head and planted his client’s story, helping you see that it is right and good. Nations is one of a small but growing number of lawyers using the subtle communication technique of neurolinguistic programming.

Popularized by success-and-empowerment gurus such as Tony Robbins, NLP has been compared to hypnosis. Proponents say it’s almost like installing software in the brain to bring about particular behavior. NLP could persuade jurors to find for the party whose lawyer is using the technique or it could influence a witness to give up the store on the witness stand.

Critics, at least amount trial consultants, tend to downplay NLP, saying it is not in the mainstream and it is little used. Some question claims of its efficacy. Others think it works but still express concern.

“It is so manipulatively conceived that I think things such as speaking from your heart with passion and speaking the truth eloquently — some of the higher and better places to think about evidence and the truth — are lost,” says Joyce Tsongas, a Seattle-based trial consultant and former president and founding member of the American Society of Trial Consultants.

Proponents of NLP say it is hardly a tool of the devil. It is, they explain, a way of teaching, of best presenting a case by telling a story in a strategically structured way. It is based on knowledge of how people learn. Some individuals learn best with visual props, others by auditory cues, and others by physically repeating an act over and over (known as kinesthetic learning).

Lawyers tend to be auditory learners, which guides their presentation of a case. But most people are visually oriented. This realization helped lead to the tremendous increase in the use of courtroom graphics and displays in recent years — and to the tremendous growth in trial consulting.

“NLP can be used as an extremely powerful technique in the courtroom,” says Nations, a prominent Houston trial lawyer whose Web site offers a virtual course on effective trial methods and strategies. “It not only works with juries. It’s helpful in communicating effectively with judges.”

While the name and concept of NLP came into vogue in the 1970s, the techniques have been used for thousands of years by great orators. Just the same, it is counterintuitive to most law school graduates.

“You need to deliver a story in a way that’s compelling and done through something other than conscious appeal,” says Eric Oliver, one of the better-known proponents of NLP among trial consultants and with Canton, Mich.-based MetaSystems Inc. “It’s built more on perception and presentation than on logic and rationale,” he says. “And that’s a reframe for lots of lawyers. It is eliminated from consideration in legal education even to this day.”

Tsongas says there are more effective tools than NLP for trial consultants to provide to lawyers: clarity of organization and thought, effective storytelling, diligent preparation of witnesses, systematic jury selection, pretrial jury research such as focus groups, and incisive case strategy.

To which Oliver, Nations and other reply: NLP is yet another useful tool in all those endeavors.

The poet Robert Frost once quipped, “A jury consists of 12 persons chosen to decide who has the best lawyer.” Now, more and more lawyers are looking for an edge. For some, NLP is that little bit extra.

The Hidden Persuaders

The best-known and probably most widely used NLP technique is “anchoring”. That is part of what Nations does when he goes to the same location in the courtroom each time he wants to make or reinforce a particular point.

For example, Nations anchors the mental anguish aspect of damages — the concept and details — at a single location so that whenever he goes there again, or even points to it, the jury recalls what he’s shown and told them about mental anguish.

Another useful NLP technique is “mirroring” or “matching”. The practitioner tries, very subtly, to put someone at ease by adopting that person’s body language — the tilt of the head, for example. Proponents say they have used mirroring to get opposing experts to go against interest in depositions and to build rapport with particular jurors.

“Mirroring is a wonderful technique, but there’s danger there,” says Nations. “There’s a thin line between mirroring and mocking. This takes a lot of work and practice. If you read about the technique and go out and try blinking when they blink, nodding when they nod and talking with their accent, people will think you’re making fun of them.”

The way the case or story is structured and presented also is important, with various themes and hierarchies of themes carefully constructed so they will stick in the jurors’ minds. These often are worked out in focus groups.

Most if not all trial consultants teach this, but the NLP way of building story lines has become more prevalent. In that sense, NLP is slipping into consciousness of some of those who otherwise criticize it.

NLP story structuring helped win a recent jury award of $16.2 million for a 26-year-old woman who sued a medical lab and a university hospital. She had alleged that faulty medical tests led to an unnecessary hysterectomy, chemotherapy and a removal of part of a lung. Trial consultant Oliver recommended a story line emphasizing communication — the criterion people most often use to rate physicians, according to focus groups.

Plaintiffs attorney Paul Luvera then created an anchor for the story line: What did the company reveal to the patient and her doctors about the test, and what did it conceal? He detailed and emphasized the anchor on charts showing a chain of events relating to disclosure and nondisclosure.

The key is going from the abstract anchor to the specific and back to the abstract. The 66-year old Luvera of Seattle, a former president of the elite 100-member Inner Circle of Advocates, says he’s just an old dog learning new tricks.

“We need to understand how people think and how to communicate with them, and that changes rapidly,” says Luvera. “People don’t think the same way they did five or 10 years ago; the Gen-Xers think differently. Any trial lawyers who are doing the same thing they used to do are making a mistake.”

Not for Salespeople

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A prominent critic of the use of NLP in advertising, sales and marketing finds it somewhat problematic in lawyers’ tool kits, but sees neither a reason nor a way to take it away from them.

“These are good tools for therapists but bad in the hands of salespeople,” says Douglas Rushkoff, author of Coercion: Why We Listen to What “They” Say (Riverhead Books, 1999). “But when you realize that charisma is a form of hypnosis, what is the difference in a charismatic lawyer and one using NLP techniques?”

The only way courts could stop the use of NLP would be to draw the line even more broadly and develop rules prohibiting particular rhetorical styles, Rushkoff says.

That is not likely — except to the extent judges of jurisdictions already have restrictions. Some, for example require lawyers to remain at the lectern or even seated at counsel table when speaking or examining witnesses.

There are even ways around such prohibitions. In Texas, rules of procedure requires that lawyers remain seated. “It can make anchoring tough, but we can get around it by using graphics and other demonstrative evidence” says Nations. “You can get up and place it where you want it.”

Some NLP concepts, especially anchoring, have been adopted by trial consultants who otherwise eschew or simply disregard NLP.

Andrew M. Sheldon of Atlanta’s Sheldon Associates says he picked up anchoring techniques from a couple of colleagues in his office who are interested in NLP. And he’s experience the rapport with people that NLP enthusiasts say comes from matching and mirroring.

“I’ll find myself doing it and saying ‘I’ll be damned, this is what the NLP folks call being in the same path or channel, and I just like this person or like what they’re saying,'” says Sheldon.

Sheldon , immediate-past president of the American Society of Trial Consultants, has both a law degree and a doctorate in psychology. He says that in graduate school he studied the kind of hypnosis that is at the heart of NLP.

“When I became a trial consultant I had to wrestle with whether this would be an appropriate use for hypnotic induction,” Sheldon says. “I decided it was not if there were an unclear motive or some ulterior motive. I think it’s less likely to work if the motives are in any way duplicitous.”

He does not, however, question the ethics of someone like Eric Oliver, whom he knows. “I think it’s got an ethical base to it; I can’t imagine someone like Eric manipulating people jut for money Anyway, my faith is in the jury.”

So is Oliver’s. but he likes to learn as much about jurors as possible. He often works with lawyers during voir dire, offering advice on how to use open-ended questions and also looking for telling details about individual jurors.

“Eric has helped me analyze individual jurors and tailor arguments to their preferential learning systems,” Says William D. Harper, a former president of the Minnesota Trial Lawyers Association who has gotten five verdicts of more than $1 million with Oliver’s help. “But for him, I wouldn’t have been nearly so able to communicate effectively.”

The Los Angeles-based trial consultant Joshua Karton, whose background is writing for television and theater, says Oliver has an uncanny ability to read jurors with his NLP training.

“He can stun a group of lawyers watching a video of voir dire with the sound turned down,” says Karton. “He will read the body language and predict who will become foreperson and how they’ll vote.”

Even NLP critic Rushkoff believes it might be good when used to pick juries. “Some jurors hold weird grudges and try to hide their prejudice,” he says. “Any way to learn more about them is a good thing.”

But he does question some uses of NLP in court, such as manipulating or frustrating witnesses.

A hostile or uncooperative witness can be “cross-matched,” which is the opposite of the bonding or warm-and-fuzzy relationship created through mirroring and matching someone else’s behavior.

“I can get you to say anything or cry or lash out in anger and not give the best testimony,” says Amy Singer, founder of the Fort Lauderdale, Fla.-based Trial Consultants Inc.

Singer, who has a doctorate in psychology, says that if she wants to break down the testimony of a physician she believes is lying, she simply formulates questions that run against the witness’s dominant learning style.

Surgeons, for example, tend to be kinesthetically oriented, she says, and the key would be to ask such a witness rapid-fire questions about what he heard and saw when he perforated the artery, not what he felt.

“People are going to criticize anything,” Singer says of complaints about NLP being manipulative. “This stuff goes on all the time anyway, so why not make it systematic? Why give the sociopath – the guy who was born to manipulate – the advantage?”

Trial consultants are not just for plaintiffs lawyers. They are being used more and more by the defense in civil cases and by prosecutors. It is conceivable that soon lawyers on both sides of a case will be using NLP in a kind of psycho-duel.

The jury could be on a roller-coaster ride as opposing lawyers set about collapsing each other’s anchors. This would be done by going to where the opponent set up an anchor and using the same gestures while talking about something else.

Certainly Howard Nations wonders whether it will happen to him. He’s talked about NLP to lawyers’ groups in all 50 states and laid it out on his Web site.

“If I were smarter I’d never talk about this,” Nations says, laughing. “The day will probably come when someone collapses one of my anchors.”

Despite its detractors, NLP gains popularity

To some, neurolinguistic programming is an effective tool for changing one’s self, and for changing or guiding the thoughts and behaviors of others. Its critics believe NLP is just another eclectic grab bag of New Age magic with no scientific grounding.

Whatever its pedigree or true efficacy, many techniques touted by NLP practitioners are being used by some very successful lawyers and trial consultants who swear by it.

Though not from the same origins, neurolinguistic programming and trial consulting came into vogue at roughly the same time.

Trial consulting tools were developed in the early 1970s, when marketing professors sympathetic to the cause of anti-war protesters helped them fight charges of civil disobedience and other protest-related crimes. This help included telephone polls, focus groups, and interviews with potential jurors. It wasn’t log before trial lawyers began using such consultants in other areas.

NLP was developed in the 1970s by gestalt therapist and computer programmer Richard Bandler and by linguist John Grinder. They studied the subtle ways that three accomplished psychotherapists worked with patients, sometimes putting them at ease simply by mimicking their body language and speech patterns.

In 1987 the National Research Council, part of the National Academy of Sciences, looked at various techniques for improving human performance, including extrasensory perception and biofeedback. The council reported that NLP “could not be documented as an effective technique for influencing others.”

That didn’t stop psychologists and educators from picking up NLP. It wasn’t long before advertising and marketing professionals began using it, too. Only later did lawyers discover the technique.

Written in 2001 by Paul Lisnek and Eric Oliver, Courtroom Power: Communication Strategies for Trial Lawyers (Pesi Law Publications) is a book that offers NLP tips for Trial Lawyers.

Powerful Persuasion:
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