I just finished a recent book by Steven D. Levitt and Stephen J. Dubner. If the names Levitt and Dubner sound familiar, it’s because you may have heard of their popular (and interesting) Freakonomics books (here and here). In the book I just finished, Think Like a Freak, Levitt and Dubner set out to teach readers how to “retrain [their] brain[s]” so that they, too, can “think like a freak.” The book defines what it means to “think like a freak” (it’s not a bad thing; it’s critical and curious thinking with a twist), and offers its step-by-step guide. But one chapter stuck out to me as particularly relevant to lawyers (and law students): How to Persuade People Who Don’t Want to Be Persuaded.
Now, the easy thought here is that this advice will apply to brief writing. And, yes, that’s true, but I think we can think of persuasion more broadly. Even a lawyer’s “objective” work has an element of persuasion to it. A demand letter must “persuade” its reader to comply; an internal office memo must “persuade” its reader that the analysis is the correct (or at least best) one.
So, what do Levitt and Dubner say?
First, we must “understand how hard persuasion will be—and why” (168). The two suggest that some people you might have to persuade really don’t know much about your topic and haven’t thought in depth about it. (You, on the other hand, have likely thought very deeply about your topic.) For these people, their initial responses and opinions are “likely based less on fact and logic than on ideology and herd thinking” (172). They may, for example, have seen or heard a headline about your topic on a quick perusal of their favorite website or news network and have simply adopted that view. (Note: you cannot tell someone in this group that his thinking in based more on “ideology and herd thinking” than on “fact and logic”; he’d never agree. As Levitt and Dubner say, such a person “is operating from a set of biases he cannot even see” (172).)
Then there are those people who have more confidence in their knowledge and tend to believe they are right (even when they’re not).
Both groups are hard to persuade: the former because “it can be hard to get their attention long enough to prompt a change” (172), and the latter because those are people who are heavily invested in their own opinions—and heavily invested in maintaining that they are right.
Lawyers do understand that persuasion is hard and often we’re dealing more with the second group: the ones who have some knowledge about a topic and are heavily invested in their own opinions and beliefs of being right. With either group, Levitt and Dunbar suggest the following:
- “It’s not me; it’s you.” This tidbit all lawyers know: no matter how great and logical your argument, “if it doesn’t resonate for the recipient, you won’t get anywhere” (173). So, when persuading, we need to hook our recipients so the argument will resonate with them. How? Stories.
- “Why you should tell stories.” Levitt and Dubner say this is “the most powerful form of persuasion.” We love stories. They capture our attention and get us invested in the outcome. We “inevitably put ourselves in [the characters’] shoes” (183). Levitt and Dubner are quick to point out, though, that you want to tell stories, not anecdotes. The difference? “An anecdote is a snapshot, a one-dimensional shard of the big picture. It is lacking in scale, perspective, and data” (181). It’s the outlier, “the memorial exception that gets trotted out in an attempt to disprove a larger truth” (181). A story, though, “fills out the picture” (182).
A good story . . . includes the passage of time, to show the degree constancy or change; . . . [a]nd a story lays out a daisy chain of events, to show the causes that lead up to a particular situation and the consequences that result from it (182).
Lawyers understand that brief writing is about telling stories, but Levitt and Dubner suggest that stories work for all kinds of persuasion. And, indeed, Think Like a Freak is chock-full of little stories to illustrate each chapter, and that makes for quick and entertaining reading. (See if you can figure out what King Solomon and David Lee Roth (from Van Halen) have in common—Chapter 7.)
- Don’t pretend your argument is perfect. Nothing is perfect. And if you present something as perfect, your reader or listener will never believe you. As Levitt and Dubner say, “Panaceas are almost nonexistent. If you paper over the shortcomings of your plan [argument], that only gives your opponent reason to doubt the rest of it” (174).
- Acknowledge the strength of your opponent’s argument. This should be obvious for lawyers. The strongest arguments acknowledge the strengths of the other side. Doing so improves your credibility and also makes you appear reasonable.
- Keep the insults to yourself. This also should be obvious for lawyers, but, alas, too often we hear or read about the missteps. Levitt and Dubner remind us that we humans tend not to take criticism well. It’s one thing to criticize or insult an argument, but it’s another to criticize or insult the writer or speaker personally. That is, I don’t read Levitt and Dubner as saying you can never say someone’s argument is flawed or, in a lawyer’s case, that another has misinterpreted a statute or case holding. I do read Levitt and Dubner as saying you should never say the writer/speaker is him- or herself illogical or that he or she couldn’t read a grocery list properly, so we cannot trust him or her to interpret a statute or case. If you’ve criticized or insulted someone, you’re not going to persuade him or her.
(For lawyers who forgot this basic tip, see, e.g., Peters v. Pine Meadow Ranch Home Ass’n, 151 P.3d 962, 964, (Utah 2007) (refusing to reach the merits because petitioner’s brief to state supreme court included accusations, inter alia, that the court of appeals had fabricated evidence) (from petitioner’s brief: “[The authoring judge] needed evidence to justify her decision . . . . There was no such evidence, so she simply fabricated it sua sponte.”) and In re S.C. v. Kelly E., 138 Cal. App. 4th 396, 400 (2006) (slamming mother’s counsel for a meritless appeal and, among many other failings, for “gratuitously and wrongly insulting her client’s daughter (the minor in this case) by, among other things, stating the girl’s developmental disabilities make her ‘more akin to broccoli’ and belittling her complaints of sexual molestation by characterizing them as various ‘versions of her story, worthy of the Goosebumps series for children, with which to titillate her audience.’”)
While in many ways, none of what Levitt and Dubner say about persuasion should be new for lawyers, but it never hurts to hear the same message in a refreshing new way. Combine their tips here with their other suggestions on how to “think like a freak” and you may find yourself with a new mindset.