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The power of discovering the argument to which there is no counterargument

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By Amy Singer, Ph.D. and Diana Greninger

What is the key to winning a jury trial? Finding the argument to which there is no counterargument…and making sure the jury understands it clearly.

How many times have you found yourself in an argument with someone, be it a co-worker, a family member, a store clerk, a judge or a fellow attorney? Have you ever noticed when or how the argument ends? It ends when someone provides the argument to which there is no counterargument, when the other person cannot top it off, refute or say “what if” any longer. But how do you find that final, powerful argument which you must provide to a jury?

Your profession is called a law practice for obvious reasons; because it requires practice, research, preparation and problem solving, often trial and error, to arrive at a desired outcome. And then it begins all over again when you take on a new client with a new case with its unique complexities.

So when you take on a case, you surely conduct research and attempt to find all there is to know about the facts during discovery. However, many attorneys dismiss the dire next step: conduct research to find what are the pivotal juror’s perceptions of the facts, issues and what presentation strategies will have the widest latitude of acceptance. In other words, don’t sing opera to folks that want to hear country music.

Once you discover what does not work (through a carefully controlled experimental design), the next step is to discover what will work. How is this accomplished?

Firstly, we need to think outside of the box. We need to come up with the "universe" of arguments that reframe the evidence and the testimony. How do you know that you have a wide enough sample of opinions to your (counter) arguments? The answer is once you get repetitions and hear "nothing new" during your focus group, you have reached the point of gathering all the reactions to your argument. Now we go to the testing phase. Is there a comeback to your argument? If the answer is no, you are done. However, if folks still have objections see step 1 and repeat.

Let us give you an example: In a medical malpractice case, the plaintiff argues that the defendant doctor failed to do a differential diagnosis. Obviously, the defendant uses the hindsight defense. What is the argument for which there is no counterargument? In medicine, as in life, when in doubt, check it out. What is the counterargument to that?

Why is this powerful? If a jury has no counterargument to the pivot points of your case, they must surrender.

Obviously with this type of focus group, the more minds the merrier. There is power in numbers both in terms of brainstorming (don't forget focus group participants is the best resource for this) and opinions.

Once you realize your sample is not about the demographics of the participants, but rather you are gathering samples of opinions, you are on your way to effective and potent persuasion research.

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