In the courtroom or anywhere else, for that matter, it’s hard to believe someone you don’t like … because you don’t want to. Credibility depends on likeability and likeability is one of the easiest variables to overlook, at your own peril, whether we are talking about the likeability of a litigator, a client or a witness. When assessing the likeability of someone on your side’s team, it is difficult to be objective because it’s your job to like them (say, if you are lead counsel, or lead counsel is your boss, plus the client, the client’s employees and your expert witnesses). You already have plenty of motivation to do so – whether a paycheck, a promotion, a relationship, or other rewards. A jury does not. Jurors will not only have no rose-colored glasses on; they may have shades on altogether.
According to the “friendship/liking rule,” people are more favorable to people they know and like and are more willing to comply with their requests. This principle can be used for good or evil. For example, it is evident in one of the most successful business models to evolve: the Tupperware home party. Tupperware found that sales pitches are received more positively from friends and neighbors than from strangers, since we believe people we like more than ones we dislike. It is also evident in affinity fraud, whereby people trust their money to people they know and like, which is exploited by many a con artist engaging in Ponzi schemes. As the U.S. SEC states (emphasis added):
- “These scams exploit the trust and friendship that exist in groups of people who have something in common.”
- “Affinity frauds can target any group of people who take pride in their shared characteristics, whether they are religious, ethnic, or professional.”
Notice that the common thread here is having common ground. Having and using the common ground between participants in conversation is one of the most important routes to effectively communicating. The converse is also true. Among the most important building blocks toward reaching the skill of successful communication during development are the abilities to take another’s perspective, include it in forming one’s messages, making sure to use the common ground, and making one’s utterances contingent on the other’s input (rather than having a collective monologue, whereby each one says something that does not relate back to what the other just said). Many of us can recall bad dates or failed relationships in which this has happened and how frustrating and unsatisfying such communication can be. This behavior is more common (and age appropriate) for 3-year olds. For example, one may say “I like ice cream,” to which the other responds, “Look, a puppy!”
Using common ground to increase likability and trust is a variation on xenophobia, i.e., we are more likely to like and trust people more like ourselves than people who are different, like it or not. Similarity (about opinions, personality traits, dress, background or lifestyle) has been shown to increase likability, so it is worthwhile for trial counsel and key witnesses to match styles with the local flavor of the jury, or, as Marisa Tomei said in My Cousin Vinny, “You blend” with your decision maker(s). Another way to increase similarity between your litigation team and the jury is to mirror body language by subtly matching the judge’s or jurors’ postures and gestures to make them feel more at ease and positive about you because you seem more like them. In contrast, during cross examination, or when facing hostility in the courtroom, it may be more powerful not to match the style of the adversary.
Your job as a persuasive litigator is to understand the factors that can be used properly and ethically to be more likable, and thus more persuasive. As your case is more complicated, jurors are more likely to seek shortcuts and give more weight to easier factors to understand, such as whom they like or not. The less personally involved jurors are with evidence, such as information that is too dry or difficult, the more they tend to rely on peripheral cues rather than on an argument’s actual strength. Being liked is an important ingredient in the cocktail of peripheral cues jurors use to decide whom to believe. Knowing that likeability is so critical to credibility in litigation, what can you do about it?
What Increases “Liking” in the Courtroom?
Attorneys and witnesses who – by design – cannot share an existing friendship with jurors -- can still benefit from applying the liking/friendship rule by understanding a number of relevant factors outlined below.
Factors of liking and friendship include:
- Physical attractiveness
- Pretty positive: Positive reactions to good physical appearance generalize to talent, kindness, honesty, and intelligence. Thus, attractive attorneys, witnesses and clients at counsel table are generally more likely to be persuasive at changing attitudes and getting what they request.
- The truth isn’t pretty: In fact, more physically attractive defendants have yielded less certainty of guilt from jurors and received recommendations for less severe punishments than less physically attractive defendants.
- Compliments can create return liking and willing compliance. For example, the actor McClean Stevenson once said: “My wife tricked me into marrying her – she said she liked me.”
- Flattery, if not overtly manipulative, creates liking and is just as effective at creating liking when true as when not true, and even when the recipient realizes that the flatterer stands to gain from being liked.
- Cooperation: People working together toward a goal, such as pulling together against a common enemy, feel more positive toward one another Car salesmen and others often engage the principle of good cop/bad cop by setting up their manager or “Corporate” or someone more senior as the villain so the salesman and customer can do battle to win him/her over, creating a common alliance toward a mutual goal. To the extent possible, create mutual goals toward which you can help the jury work with you, whether a mystery you will help them solve, a more efficient way to get through certain procedures, clear tutorial graphics to become educated about facts, or another end you can help them reach.
- Scarcity improves positive attitudes because if less is available, what is available seems better. Limited access to information makes us want it more and makes it more influential. Hence, explaining “little-known facts of interest,” or information only the courtroom is privy to which are relevant to the case, and making jurors aware of this fact when possible, makes them feel special. Scarcity has increased how things are valued throughout history. Collectors know it; precious mistakes such as a misstamped coin are valuable because of it. It’s a shortcut to something’s value, it can cause the loss of freedoms, and people hate to lose freedoms they already have (because it diminishes personal control), also called “psychological reactance theory.” The more threatened we are about losing something, the more we want to keep it and value it (you don’t know what you’ve got till it’s almost gone).
- Reciprocity: Offering someone something first makes them more likely to want to give you something back, known as the “reciprocity reflex.” Phrasing what you promise the jury in voir dire in such terms (I promise to do “x” for you, and rely on you to do “y”), then keeping your word, is one way to act on this principle.
- Smooth Talking: People highly responsive in conversation (those who responded faster and more, used more diverse words, and were more effusive when responding) were also perceived to be likeable, intelligent, and interesting, and were valued as a possible friend. This implies that both attorneys responding to the Judge’s questions and witnesses responding to attorneys’ questions should beware of overly laboring the timing of their responses and should be conversational when responding – without overdoing it.
- Other factors which have added to likeability are self-disclosure, listening, cordiality, showing interest, and of course, appropriate smiling. A variety of research has yielded other highly valuable findings about the relationship of social validation (fitting in with what others are doing as a model for what to do), consistency (between prior and current actions) and authority (whereby credentials merit trust), among others, to increase persuasion.
Jekyll vs. Hyde
Likeability and trust also come from consistency. Knowing that what you see is what you get, over time, helps. It is no wonder, therefore, that witnesses who drastically change their demeanor from friendly and cooperative on direct examination, and then morph into someone who refuses to answer questions, becomes antagonistic and uncooperative on cross – is not likable nor trusted. The truth should look and feel the same, no matter who’s asking the questions.
In the end, sincerity bonds people together. Allowing them to see in you and your clients and witnesses the same truths and human traits that they recognize in themselves makes you genuine, likeable, and believable, like it or not.
Other Articles on A2L Consulting's Site related to a litigator's likeability and relationship with a jury and colleagues include:
- Free Download: Jury Consulting & Trial Consulting Guidebook for Litigators & Litigation Support
- 5 Things Every Jury Needs From You
- Jury Selection and Voir Dire: Don't Ask, Don't Know
- 10 Things Every Mock Jury Ever Has Said
- Your Trial Presentation Must Answer: Why Are You Telling Me That?
- 10 Signs the Pressure is Getting to You and What to Do About It
- 5 Signs of a Dysfunctional Trial Team (and What to Do About It)
Additional Reading Offsite & Endnotes:
DeBono, K. G. and R. J. Harnish (1988). “Source expertise, source attractiveness, and the processing of persuasive information: A functional approach.” J. of Pers. And Soc. Psych., 55(4): 541-546.
Dolinski, D., M. Nawrat, et al. (2001). “Dialogue involvement as a social influence technique.” Pers. and Soc. Psych. Bulletin, 27(11): 1395-1406.
Lovas, Michael Holloway, Pam. (2009). Axis of Influence: How Credibility and Likeability Intersect to Drive Success. Morgan James Publishing: New York.
Miller, N., G. Maruyama, et al. (1976). ”Speed of speech and persuasion.” J. of Pers. and Soc. Psych., 34(4): 615-624.
 Shavitt, S. & Brock, T. C. (1994). Persuasion – Psychological Insights and Perspectives. Massachusetts: Allyn and Bacon.
 U.S. Securities and Exchange Commission: Affinity Fraud: How To Avoid Investment Scams That Target Groups at http://www.sec.gov/investor/pubs/affinity.htm
 Emswiller, T., et al. (1971). Similarity, sex, and requests for small favors. J. of Applied Soc. Psych., 1, 284-291; Byrne, D. (1971). The attraction paradigm. New York: Academic Press.
 Petty, et al. Ibid.
 Shavitt, et al. Ibid.
 Dion, K. et al. (1972). What is beautiful is good. J. of Pers. & Soc. Psych., 24, 285-290; Rich, J. (1975) Effects of children’s physical attractiveness on teacher’s evaluations. J. of Ed. Psych., 67, 599-607.
 Benson, et al. (1976). Pretty pleases: The effects of physical attractiveness on race, sex, and receiving help. J. of Exp. Social Psych., vol. 12, pp. 409-415; Chaiken, S. (1979). Communicator physical attractiveness and persuasion. J. of Pers. & Soc. Psych., 37, 1387-1397.
 Efran, M.G. (1974). The effect of physical appearance on the judgment of guilt, interpersonal attraction, and severity of recommended punishment in a simulated jury task. Journal of Research in Personality, 8, 45-54.
 Byrne, D. and Rhamey, R. (1965). Magnitude of positive and negative reinforcements as a determinant of attraction. J. of Pers. And Social Psych., 40, 492-500.
 Drachman, D. et al. (1978). The extra-credit effect in interpersonal attraction. J. of Exp. Soc. Psych., 14, 458-467.
 Shavitt, et al. Ibid
 Brock, T.C. (1968). Implications of commodity theory for value change. In A.G. Greenwald, T.C. Brock & T.M. Ostrom (Eds.), Psychological foundations of attitudes (pp.243-276). New York: Academic Press.
 Brehm, J. (1966). A theory of psychological reactance. New York: Academic Press.
 Cialdini, R. (1993). Influence. The psychology of persuasion. Q.W. Morrow Co., N.Y.
 Swann, W. B. and P. J. Rentfrow (2001). ”Blirtatiousness: Cognitive, behavioral, and physiological consequences of rapid responding.” Journal of Personality and Social Psychology, 81(6): 1160-1175.
 The Science of Persuasion at http://www.aboutpeople.com/the-science-of-persuasion/