Mark C. Mazzarella

Impression Formation and Management for Lawyers

    What do marketing, advertising and public relations professionals have in common with trial lawyers? We all make a living selling ourselves, our clients and our ideas. A notable difference is that marketing, advertising and public relations professionals are trained to understand and emphasize what counts most - the decision making process.
   Sure, there are some trial lawyers who understand the importance of the basic principles of persuasion and actually use them on a regular basis. But they are a distinct minority. They are also the minority that: (1) land more clients, even though they don't have the intelligence and technical skills (not to mention grace and beauty) that the rest of us enjoy; and (2) frequently prevail over much more legally proficient trial lawyers. Unfortunately, even with the introduction of trial advocacy programs in most U.S. law schools over the past few decades, law students (and later trial lawyers) continue to be exposed almost exclusively to the approach to legal persuasion that is represented by this graphic:

   Beginning as law students, and throughout our years of legal practice, most of us are trained to understand and emphasize the legal holdings of applicable cases - the law. To a lesser extent we consider the rationale for decisions - the logic. On rare occasions, we may consider how the facts influence the analysis - but not often, and certainly not often enough. But how much thought is given to how emotional responses to those facts have affected the decision maker's "analytical" processes? The answer is usually, "None."
    No wonder our closing arguments are packed with analysis - not emotion. If we were to produce a Coors Light commercial, we would forget the beautiful women and the studly men playing beach volleyball while enjoying ice cold "Silver Bullets." Instead, we'd talk about the 16 grades of hops available and stress why one was selected. We'd note the critical differences between stainless steel and copper vats. And, most importantly, we'd make sure the jury was intimately familiar with the role of yeast in the process. That'll make them line up at the 7-11 on the next trip to the beach! Marketing folks know what most of us trial lawyers don't - people buy based upon emotion and justify with facts. Or, as Elmer Wheeler wrote: "Don't sell the steak - sell the sizzle." They understand that the decision-making process is based on just the inverse of the pyramid we learn to rely upon as lawyers. Their pyramid looks like this:

   They understand that actions are influenced primarily by emotions, not analysis. That's not surprising, considering that 90% of the brain's activity is non-conscious or emotional; only 10% is rational and cognitive; and even that 10% is hopelessly polluted by the 90% that isn't. In every instance in which you sell yourself, your client or your case, keep the right pyramid in focus. Start with an emotional foundation and build on it with facts, logic and finally the law - not the other way around.
    As others form impressions of you, their assessment of your trustworthiness, caring, humility and capability are most important - generally in that order. These qualities, which Jo-Ellan Dimitrius and I call "Compass Qualities" in Put Your Best Foot Forward, are projected through a combination of seven different means, which we call "the Seven Colors." Much as a seven-color printer transfers the best possible image on a piece of paper when each color is carefully applied, we, and our clients, can enhance our impressions if we fully utilize each of our "Seven Colors:"

• Personal Appearance
• Body Language
• Voice
• Communication Style
• Content
• Actions
• Environment

   Trial lawyers tend to stress content, often to the exclusion of the remaining six Colors. But research and experience demonstrate that this is a horrible mistake. For example, in a frequently cited study, Albert Mehrabian found that when conflicting signals are projected by various means, content yields to the other "Colors."

    Richard Nixon's campaign team came to the same painful realization after the 1960 televised presidential debates. Nixon was the distinct winner with the radio audience where content, and to a lesser degree voice, reigned supreme. But the television audience witnessed Nixon's nervousness, sweat dripping through his pancake makeup, and favored Kennedy's calm, charismatic confidence. The power of emotions over logic has been demonstrated in presidential election. The Gallup Poll has asked voters to rate each candidate on likeability, and the winner in every election since 1960 was the candidate who was rated most likeable.
   If you discount the importance of any of the Seven Colors, you should reconsider your biases. If you don't, you'll dig a hole from which you can't be extracted by even the most eloquent legal argument.
    In an article of this length, I couldn't begin to address all of the ways that trial lawyers can influence positive or negative reactions. There are, however, a few characteristics that research indisputably demonstrates impact every impression. We call those that enhance each of the Compass Qualities - trustworthiness, caring, humility and capability - "Magic Pills," and each of those that detract from them "Toxic Traits." If you do nothing but incorporate healthy measures of "Magic Pills" and avoid "Toxic Traits," you will be way ahead in the Impression Management process. Our own research and analysis of other studies has identified 5 "Magic Pills" that standout because they are available to almost everyone, don't cost anything, always help positive impressions and, unless taken in massive overdoses, never detract from a good image. They are:

Eye Contact: No trait is more quickly and uniformly identified with positive or negative qualities than good or bad eye contact. Those with good eye contact are thought to be more honest, friendly, likeable and confident. In informal settings, eye contact during 60% - 70% of the time is optimal. Lesser degrees of eye contact are deemed evasive; and greater intensity can be threatening. In professional settings, where more intense communication is expected, eye contact during 70% - 80% of the time is optimal.

Smiling: Most of us don't naturally possess Tom Cruise's engagingly broad smile. But studies show that almost any smile is better than none. Smiling reflects friendliness, which engenders likeability. And if we like people, we tend to find them to be more trustworthy, humble and capable.

Handshake/Greeting: If you're surprised that the handshake/greeting makes our short list of "Magic Pills," we were too. But the research demonstrates that the emotional bond created by a warm handshake and greeting can't be ignored. Shake hands when you say "Hello," and when you say "Good-bye."

Posture: Like eye contact, good posture projects trustworthiness, confidence and capability. Your "bearing" predisposes your audience to deference and respect. Stand tall, shoulders back, stomach in and head erect.

Enthusiasm: Enthusiasm, and the energy it projects, is contagious. Think back to those teachers, coaches and bosses who had the greatest influence on you, chances are they all conveyed a sense of enthusiasm for whatever they did. Just as each of the "Magic Pills" will enhance your impression, "Toxic Traits" can be fatal.

Offensive Physical Acts: A positive impression can be dashed by a single act that others find offensive. At the top of the list is anything that smacks of bad hygiene - dandruff, bad breath, body odor, and wrinkled or soiled clothing. Some things just aren't meant to be shared. And I'm not just talking about belching and passing gas. Sniffling, wiping your nose, picking at any part of your body, scratching, coughing without covering your mouth and picking debris from under your fingernails have much the same effect. If you must do any of these things, at least leave the room.

Unappealing Word Usage: You may think it's macho, whether you're a man or a woman, to use profanity. But studies are uniform that profanity almost never makes a good impression. Likewise, bad grammar and trendy sayings may seem "with it," but they seldom enhance your impression.

Insensitive Communication: More than anything else, others want you to affirm their importance. Harsh criticism, even in private, or any public criticism, is perceived poorly. As Publilius Syrus said 2,000 years ago, "Speak well of your friend in public, admonish in secret." Judgmental comments, biting humor, gossip, sarcasm and discussion of overly personal topics also lessen others' impressions of you. People like, and are drawn to, positive individuals, and are afraid of, and repelled by, those who favor the negative.

Aggressive Behavior: Intimidation of any kind seldom promotes positive impressions. Whether reflected in the invasion of others' personal space, domination of conversations or harsh attacks, most people react adversely to any form of aggressive behavior, even if addressed toward others. There are occasions when a full frontal assault on a witness who is dishonest or argumentative may seem justified. But, if you are truly confronted with such a case, you are almost always better off letting the judge and jury draw that conclusion themselves, rather than force-feeding them.

Pettiness: It may be tempting to get down and dirty with opposing counsel or a witness, but remember what grandpa used to say, "When you wrestle with a pig you get muddy and the pig just enjoys it." Take the high road and others will appreciate your class. Be quick to applaud others' successes, and reluctant to dwell on your own. If you've ever wondered why a witness you knew was lying was believed by the jury, or why your opposing counsel was deified in post-verdict interviews, the answer may lie in the physiological concepts of "cognitive dissonance" and "cognitive consistency." Once people have formed an impression, they tend to reject anything that is inconsistent with that impression (no matter how logical), and to accept anything consistent with the impression (no matter how illogical). If you, and your clients have created the emotional reaction by others that you are trustworthy, caring, humble and capable, you will predispose them to buy what you have to sell - yourselves; just as those marketing gurus predispose their T.V. audience to buy their product, not by selling the beer, but by selling the emotionally attractive lifestyle.

    In the next issue of the ABTL Report, I'll move beyond the basics of Magic Pills and Toxic Traits to discuss how you can "manage" the impressions others form of you and your clients. I'll discuss the stereotypes we all harbor, their influence on Impression Formation, and how to accentuate the positive stereotypes and minimize the negative ones. But that's for next time.

Mark Mazzarella is a partner in the San Diego law firm of Mazzarella, Dunwoody & Caldarelli LLP.