Harnessing The Power Of Nonverbal Persuasion For A Judicial Audience

Oral Argument And Impression Management: Harnessing The Power Of Nonverbal Persuasion For A Judicial Audience

Michael J. Higdon

University of Tennessee College of Law

September 19, 2008

Kansas Law Review, Vol. 57, No. 3, 2008

UNLV William S. Boyd School of Law Legal Studies Research Paper No. 09-01

University of Tennessee Legal Studies Research Paper No. 84


In essence, my article utilizes social science research on the topic of nonverbal communication in order to advance our understanding of what makes for effective oral advocacy. Currently, there are no articles that 1) give a comprehensive summary of the relevant social science research within the area of nonverbal persuasion and 2) apply that research specifically to the area of oral argument. My article attempts to fill both of these needs.

As you will see in the article, nonverbal communication goes well beyond simple hand gestures, but also encompasses how a person speaks, how a person dresses, a person’s facial expressivity, and even such things as a person’s posture and head position. Furthermore, social science research reveals that both these and other nonverbal cues can greatly impact the perceived credibility and persuasiveness of a speaker. Not only that, but in many instances, listeners tend to place even more reliance on what a speaker is saying nonverbally than the actual substance of the speaker’s presentation. Given that attorneys should seek to maximize their persuasive potential during oral argument, knowledge of this research and these various principles is essential. Section III of my article explores this research.

Of course, what makes nonverbal persuasion somewhat different for oral advocates comes from the fact that the attorney is directing his argument not to a jury, but to a judge. As my article details, one of the ways a speaker nonverbally increases his ability to persuade is by employing nonverbal cues that enhance the speaker’s perceived dominance. When appearing before a judge, however, the attorney must keep in mind that 1) it is the judge who is most dominant and 2) the judge expects nonverbal cues from the attorney that the attorney understands this hierarchy. Again using social science research, Section IV of my article explores this balancing act between dominance and submission and offers concrete advice on how oral advocates can navigate that somewhat thorny issue.

Oral Argument And Impression Management: Harnessing The Power Of Nonverbal Persuasion For A Judicial Audience – Introduction

“I believe that I spent too much time in the last campaign on substance and too little on appearance.” – Richard Nixon, after losing the 1960 presidential election

This famous Nixon quote was prompted by the somewhat startling revelation that occurred during the 1960 televised debate – in fact, the first presidential debate ever broadcast on television – between Nixon and John F. Kennedy. This revelation arose primarily from audience reactions to the debate. Specifically, the majority of those who listened to the debate on the radio found that Nixon was the victor or, at least, considered it a draw between the two candidates. The majority of those who watched the event, however, had a very different opinion. In fact, this latter group declared Kennedy to be the overwhelming winner.

Now part of the reason for this disparity of opinion between those who saw the debate and those who merely listened to it was Nixon’s physical appearance. During the debate he wore a grey suit, which blended in with the background; he had a noticeable five o’clock shadow; and he was visibly sweating through much of the debate. Physical appearance, however, was only part of Nixon’s problems. As one body language expert points out when describing the event, Nixon also displayed questionable nonverbals:

Nixon sits with a tense, narrow posture, whereas Kennedy sits with legs crossed, hands resting easily, his weight centered. In the medium camera shots, Nixon can be seen gripping the lectern tightly and not gesticulating for long periods of time, although his head movements are clear and emphatic. And Nixon displays a disastrous pattern of hyperblinking – not just abnormally frequent (more than one per second), but at times with such rapid flutters that his eyes momentarily close. By comparison Kennedy clearly wins despite his rather ordinary and constricted showing.

Now, I describe this event as a “startling revelation” because, at that time, television was a still a recent phenomenon, and this televised debate made it clear to politicians that, when it comes to persuasion, visual presentation alone is an extremely powerful component. As a result, politicians have since become much savvier in using not only their words, but other nonverbal means of communication to create favorable impressions among potential voters. In fact, so central today are the concepts of nonverbal communication to political science that it is relatively common to see the news media commenting on a political candidate’s nonverbal skills.

Although American politics was perhaps the first genre in which the power of body language presented itself to the masses, for some time prior, social scientists had already been studying the persuasive impact of nonverbal communication. In fact, it is largely because of this very research that today we are able to understand why exactly Nixon’s nonverbal behavior during the 1960 debate was “bad.” Indeed, since that debate, the study of nonverbal communication and its impact on persuasion has continued to grow, revealing a much deeper understanding on the power of the human body as a communicative tool. As a result, many people (and not just politicians) are now much more conscious of their own nonverbal cues and what exactly those cues are communicating to others. In fact, because of this increasing level of interest as well as the greater availability of information on nonverbal communication, today there even exists a number of “self-help” books to help average readers harness the power of their nonverbal communication so as to achieve greater success in such areas as business, romantic relationships, as well as social situations in general.

Harnessing The Power Of Nonverbal Persuasion For A Judicial Audience

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