Making Your Case Understood: The Basics of Neuro-Linguistic Programming
The Basics of Neuro-Linguistic Programming
I am assuming if you are reading this article, it is because you have a case either pending or which you anticipate will start soon. If it hasn’t started yet, then I commend you for preparing in advance.
The issue of making your case understood is one to be considered and evaluated from the very beginning because, no matter how strong your case, if the judge or jury doesn’t understand it then the likelihood is that you will lose or not get the full measure of your damages.
The Definition of Neuro-Linguistic Programming
NLP is described in much of the literature as an approach to communication, personal development, and psychotherapy created by Richard Bandler and John Grinder in California in the 1970s. So, that definition essentially means it is a type of self-help.
However, for our purposes, that isn’t much help. So the few lawyers, and very few pro se litigants, who decide to try this approach to enhance their trial skills would do better to use a different definition.
What is NLP in Terms of Trials?
The definition I suggest you focus on is that NLP is using a neuro-linguistic programming (NLP) technique to actively try to control the emotional and mental state of an individual.
How Is that Done?
While it would be phenomenal if each person who reads this article would be able to take a full program devoted to NLP, realistically this just isn’t possible due to the time and expense involved so we’re going to focus on just one area which can be used.
How NLP Identifies the Way People Absorb Information
There are essentially three ways people learn new ideas or “take in” new information at the maximum level. Once I explain what these are, you will quickly be able to identify which type you are and likely will know some people who belong to the other groups.
The first way people learn is by sight and these type of people are called visual learners. These are the ones in class who could listen to a professor lecture on a topic for an hour, and at the end only have the most rudimentary knowledge of what the lecture had been about. However, if the professor had interspersed the lecture with video, models, PowerPoint slides, etc. then the visual learner would have fully comprehended. These people also learn better by reading as opposed to a lecture.
The second group is known in NLP circles as auditory learners and the same lecture would have been very effective with them. They learn by listening and will often prefer “books on tape” (or an audio digital file now) as opposed to actually reading the book themselves.
The third type is known as kinesthetic, which means they learn by doing or touching. While they may not be able to watch a video or read instructions and excel at what it is trying to teach, they’re the kind of people who actually do a task once and then remember it well. In a classroom setting, these people can be encouraged to learn by them writing something on the board, touching the various materials, or even just the act of taking notes.
While there are subgroups or people who understand best by using a combination of these types of teaching, Visual, Aural, and Kinesthetic remain the “big 3” types. In advanced countries, studies have even been done to show the breakdown between these groups are:
How to Spot the Type of Learners
For our purposes today, we’re not going to discuss in any detail how to spot the different types of learners although that topic is covered briefly in our book, The Guerrilla Guide to Picking a Jury. That book discusses how to use the questioning process to not only get someone’s views but also to ascertain their learning type.
One quick example is to ask questions which require the potential juror (or whoever you are trying to figure out to which category they belong) to acknowledge they understand. While this sounds confusing, I can give you a quick example that will allow you to identify all three types, although it may take several questions to get the response you need.
Remember, while in reality, you want a response that is true, for our purposes in determining what NLP grouping the person belongs in, then neither the question nor the answer is important, just the phrasing.
Essentially, it can be boiled down into asking a potential juror if they understand some point you have made. You want to ask the question in a way that doesn’t imply how they should phrase their answer. Accordingly, after you have discussed the issue, you can then ask the juror some variation on “How do you feel about what I just discussed? Was it understandable?”
A person who learns visually will respond with “I see what you’re talking about.”
A person who learns auditorily will respond, “I hear you.”
A person who learns kinesthetically will give you a response, “I feel the same way.”
Those are just easy examples, since they may just say “yes” or “no”. Since, without a doubt, some are going to reply in a way which doesn’t reveal their NLP issues, you want to have several questions thought out and prepared which allows the identification. When in doubt, you can assume the 60-20-20 percentage split discussed in the last section applies.
Also, listen carefully to how the judge phrases things in any hearings you attend, either as a participant or as an audience member, because they often give away their NLP group as well. If you can pick up on that, then it will tell you how to approach any hearings, motions, etc. which you may have in front of the judge.
How Does This Play Into a Trial
Once a person understands this fundamental aspect of how to teach jurors about the case and the evidence, then as the case is being prepared, ideas on how to present the evidence in a manner where it makes the most impression and takes advantage of the knowledge.
I’ll give you an example of a practice I started after learning about NLP and its “programming”. Immediately before a trial starts you should be aware of all of the witnesses which you will call and all of the evidence you intend to offer. I would take all of the documentary evidence, and if it was something that wasn’t a document then I would take a good quality picture of it, assign it an exhibit number and make 18 copies of each. I also had 18 identical binders with the plastic document holders inside the binders.
I would ask the judge if we would be allowed to pre-admit all of the evidence in a case to save time. All judges are interested in saving time, if possible, so long as it doesn’t interfere with the trial or break the rules. I would then pre-admit the binder with the original documents in them.
Then, as the trial would start I would ask the judge if I could give each juror serving on the case an individual binder which was identical to the one which had already been admitted. The reason was to, again, save time since the standard practice is to pass an exhibit through the jury box after each one is admitted and to allow the jury to examine it before going on with the questions. Sometimes this would draw an objection that the jurors might look ahead and see exhibits out of context. The reply to this is to ask the judge to issue an instruction that jurors are not to “skip ahead” in the exhibits nor are they to take the binders with them on breaks or when they leave the jury box. They are to place the notebooks on the chair where they are sitting. This enables a quick review to see that all books remain in the courtroom. I did this on a number of trials and was always allowed to use the binders so long as my exhibits were pre-admitted.
You’ll note above that I mentioned I would do 18 binders. This many is necessary in a jury case even though they all may not be used. The breakdown is 1 binder admitted into evidence and which will be kept by the person in charge of maintaining the admitted exhibits, usually the court reporter or the clerk. The second copy is for the judge to review if it becomes necessary. The third copy is for the opposing counsel to look over as the exhibit is discussed. A jury is normally composed of 12 members plus potential alternates, for our purposes here I am assuming two alternates which gives you a total of 14 binders in the jury box. The final of the 18 binders is for you to use, although you can use the one which has already been admitted into evidence. I sometimes even used different binder colors to signify which binders are jury binders, which is the original, and which are the judge’s and attorney’s.
This number can be adjusted if you’re in a location which uses fewer jurors, doesn’t have or has more alternates, has several other attorneys involved, etc. The good part is making copies is easy and this method does make a case move both faster and smoother. the only drawback is the expense, but realistically it isn’t that expensive and whether you are suing or being sued, you want to win and therefore it is worth doing the case right.
How Do These Help with the NLP Groups?
Using a binder and enlarging all documents to 30″ X 40″ and mounting them on foam core board will allow you to let each juror learn according to how they learn best.
I use the 30″ X 40″ foam core board enlargements places on a tripod to show and ask questions from. If you watch the jurors behavior during questioning, you will see some watching you as you point things out on the large board (visual learners), some will have the binder open on their laps but will often have their eyes closed for much of the testimony, only opening them to look up something you pointed out in particular (auditory learners), while still others will be tracing the words along the page in their binders with one finger (kinesthetic learners).
You want to be sure and have an engaging style when speaking, so rehearse a lot, because the hardest ones to keep interested are the auditory learners. Changes in your voice pitch, flow, and speed can also help with them. The fact that the exhibits are in a binder they get to “play with” keeps the kinesthetic learners occupied and the large exhibits coupled with the small ones in their binders encourage the visual learners to keep pace.
While the fact that you use a trial aid like a binder won’t win your case for you. However, it can give you an edge over the other side whether it is another layperson appearing pro se or it is a lawyer who is familiar with the courtroom. The main point to be taken from this article is for you to find a way to engage the decision maker, whether that be a judge or jury, and keep them involved with your position and have them learn what you need for them to learn to win your case!