Higdon on Nonverbal Persuasion in Oral Argument to Judges

Or, would Governor Palin please stop shaking her head “no” when she is emphasizing a rightly-positive point about her candidacy?  Somewhat related to that query (but not an example he uses), today Michael Higdon at UNLV (a colleague of our own Nancy Rapoport, I note, and shown below right) has posted to SSRN his article, Oral Argument and Impression Management: Harnessing the Power of Nonverbal Persuasion for a Judicial Audience.  It is forthcoming in the Kansas Law Review, and has this abstract:

Inessence, my article utilizes social science research on the topic ofnonverbal communication in order to advance our understanding of whatmakes for effective oral advocacy. Currently, there are no articlesthat 1) give a comprehensive summary of the relevant social scienceresearch within the area of nonverbal persuasion and 2) apply thatresearch specifically to the area of oral argument. My article attemptsto fill both of these needs.

As you will see in the article,nonverbal communication goes well beyond simple hand gestures, but alsoencompasses how a person speaks, how a person dresses, a person’sfacial expressivity, and even such things as a person’s posture andhead position. Furthermore, social science research reveals that boththese and other nonverbal cues can greatly impact the perceivedcredibility and persuasiveness of a speaker. Not only that, but in manyinstances, listeners tend to place even more reliance on what a speakeris saying nonverbally than the actual substance of the speaker’spresentation. Given that attorneys should seek to maximize theirpersuasive potential during oral argument, knowledge of this researchand these various principles is essential. Section III of my articleexplores this research.

Of course, what makes nonverbalpersuasion somewhat different for oral advocates comes from the factthat the attorney is directing his argument not to a jury, but to ajudge. As my article details, one of the ways a speaker nonverballyincreases his ability to persuade is by employing nonverbal cues thatenhance the speaker’s perceived dominance. When appearing before ajudge, however, the attorney must keep in mind that 1) it is the judgewho is most dominant and 2) the judge expects nonverbal cues from theattorney that the attorney understands this hierarchy. Again usingsocial science research, Section IV of my article explores thisbalancing act between dominance and submission and offers concreteadvice on how oral advocates can navigate that somewhat thorny issue.

[Alan Childress]