Updated: Jun 8, 2021
By Clayton T. Robertson (Criminal Defense / Civil Litigation Attorney)
When it comes to the art of persuasion, the single best piece of advice I can give someone is not to "know your audience," which is far too generic to be helpful, but rather a far more specific suggestion -- which is to know your target's "leverage points."
What is a "leverage point"? Simply put, as you consider all the factors that motivate your target audience, you discover their principal sources of pleasure and pain and what incentivizes them to act in a particular way.
Let me digress a bit:
Economists view the world principally through two concepts: (1) incentives and (2) rational actors. In other words, we respond to incentives that motivate us to act in a certain way. These incentives can be financial, reputational, or any number of things. And given these incentives, a person generally behaves in a rational, self-interested manner. (Incidentally, the theory of the "rational actor" is potentially flawed, but that subject is outside the scope of this blog because it depends on how you define "rational" and "self-interested.")
Psychologists often view the world through two prisms: (1) pleasure and (2) pain. These two foundational concepts constitute the underpinnings of behaviorialism. In short, humans are conditioned to act in certain ways in reaction to whether it is pleasurable or painful. You've probably heard of the concepts of positive and negative conditioning. (Incidentally, responses to pain are probably more pronounced than to pleasure, though again this is outside the scope of this blog and it depends on the context and person.)
How do these concepts interact? Simply put, you need to do a deep dive into what truly motivates your target audience, what are the "whys" behind what they do, and what concerns them the most? In short, what are their most vulnerable and pronounced pain and pleasure points?
In litigation, as with any negotiation, understanding these concepts is critical. I was involved in a case in which the opposing party was concerned about whether litigation would expose his tax fraud. In another case, the physician was concerned about a potential investigation by his licensing authority for patient abandonment. In yet another circumstance, the facility knew it had violated several state regulatory requirements. In all of these cases, these parties knew they were vulnerable, yet it was never mentioned.
So what does this mean for you? It means you should hire an attorney who smartly assesses the other party's strengths and weaknesses and their underlying concerns, and who knows the right questions to ask (and the way to ask them) to elicit or infer this critical information. Only in this way can you efficiently achieve a truly successful outcome.