The Pennsylvania Lawyer 14 January/February 2018

The Art of Persuasion: The Written Word — Asking AdversariesBy Robert A. Creo

THE EFFECTIVE LAWYER

This is the 18th installment in the Effec-tive Lawyer series. This column, fourthin a series on the written word, exploreshow you can effectively draft documentsintended to convince others to accept

your positions and advance the best interests ofyour clients.

Challenges and GoalsHow do you present written information so thatit is not discounted or dismissed as positional bargaining? Generally the same drafting principlesand content model are recommended for demandpackages, responses, proposals, contracts andother commercial and transactional matters. Yourobjective is to transform the assessment of the opposing stakeholders or otherwise entice them to engage in good-faith bargaining now, not later.Although variations are expected between claimsand transactions, the subject matter, the stage ofthe representation, the nature of the clients andother factors, the platform and tenets of effectivepersuasion are surprisingly similar. If you take areductionist approach to effective written presen-tations and peel them to their core, what you willsee is an approach that is not difficult to follow. It is effective whether you are a claimant or defen-dant or are engaged in contractual negotiations. The biggest hurdle is psychological and is basedon our hardwiring and the way lawyers are trained.Legal education focuses on skeptical reactions toany opposition proposal, with an eye toward iden-tifying all issues and ferreting out potential risksto clients. We are trained in law school and asnovice lawyers to start from a place of doubt, toplay defense first and always to keep our eyes wideopen. This is compounded by human hardwiringin our critical thinking functions, known as cognitive bias. Cognitive biases are irrational or nonrational defaults that guide or influence our judgment and decision-making. In a priorcolumn I introduced the concept of cognitive bias as it applies to demands. See “At The Table:The First Course — Demands and Offers” (The Pennsylvania Lawyer, September/October2016). That column did not address, however, the cognitive bias commonly referred to as reac-tive devaluation.

Reactive devaluation occurs when a suggestionis discounted solely because it originated from anantagonist. It is a nonrational evaluation of themerits of the proposal. This dynamic usually ex-ists at a subconscious level but can easily surfacein speech or as an observable reaction in facialgestures or body language. You recognize andreact strongly to contentions or proposals thatseek concessions from you. The more you dislikeor distrust the other advocate, the stronger the reactive devaluation. Your assessment becomesmore subjective as you are influenced by your perceptions of the opponent’s character, credibil-ity or reputation. If you have had prior negativeinteractions with opposing counsel, the potentialfor reactive devaluation grows. Frequent positiveinteractions breed trust and cooperation; thegreater the number of uncivil encounters, thegreater the likelihood for reactive devaluation.Even minor slights can intensify your dislike ofopposing counsel. It is, therefore, often an uphillbattle to produce documents that can get othersto obtain your client’s objectives. Here is a modelthat I contend maximizes effectiveness.

Mechanics and LogisticsThe end product may be in any number of for-mats; however, it should be sent by regular postalmail or delivery service, with an electronic versionfollowing the expected mail receipt date. Al-though the recipient is likely to forward the elec-tronic version to the client or others, the printedcopy is a good idea so that the decision-maker hasyour material in the manner and order in whichyou intend it to be read and digested. There is agrowing body of evidence that people retain morefrom reading a printed page than a computerscreen. Many people, however, prefer to processdocuments electronically, so it is important tosend the electronic version shortly after the hardcopy is scheduled to arrive. You could also ask inyour cover letter for an email confirming receiptof the hard copy and indicating that the electronicversion will then follow. This electronic versionshould be in one continuous, long document forease of reading and forwarding.

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Content and Best PracticesThe cover letter should be factual, civil andrespectful. It should contain a sentence onthe relationships between the parties, stateappreciation for their review and considera-tion of the materials, list the sections ordocuments contained in the packet and re-quest a target date for a response. I recom-mend that it also contain the “ask” ordemand/response. State your position earlyand concisely to make it easy to under-stand. Do not bury it in the end; lawyersare too impatient to follow merrily alongwhile you make each of your points. Theywill start reacting defensively to each pointor skim the document until they see theask. Send enough originals for the lawyer,client and any adjuster or other decision-maker. They will react more quickly, andperhaps more favorably, to your positionswhen everything is tied up neatly and lesswork is required on their part to process it.Here is a sample from a transactional mat-ter, a claim for defective work on a resi-dence, which should fit on one page.

For Settlement PurposesCounsel:

Please find attached three identicalbinders containing the informationand documentation supporting the$125,000 demand from Jack and Jillfor the claim of defective workman-ship on the recent remodeling projectcompleted by your client, ACMEHomes. The binders contain, undereach of the numbered tabs:

1. Three estimates of repair costs.2. Annotated photos of the defective

workmanship.3. Narrative statement outlining the

underlying facts of the claim.4. Copies of email correspondence

and text messages to the contractor. 5. Draft complaint to be filed in the

Court of Common Pleas.

6. Timeline chart setting forth thechronology of key events.

7. Brief statement by me on liabilityand validity of our claim and damages.Note: This justifies consistency of posi-tions and resolution with fair marketvalue, community and objective stan-dards, transactional costs, closure andrelationship.

8. Copy of Jones case decided by theSuperior Court in 2007 in support ofthe claim. Note: One case only foreach distinct point of law.

9. Draft release and settlement document.

Please confirm receipt by email toKelly, my assistant, at Kelly@lawfirm.com, and advise if you want the entirepacket sent to you in electronic format. If additional information isdesired, please call me.

We will take no action for 20 days. Ishall call if I do not hear from you bythen.

We appreciate your continued cooper-ation in this matter.

15The Pennsylvania Lawyer January/February 2018

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The Pennsylvania Lawyer 16 January/February 2018

Note that it is not necessary to use harshlanguage threatening suit or dire conse-quences for not acceding to the demand ormissing an artificial deadline. The order,tone and degree of formality may vary de-pending on the nature of the case and therelationship between counsel or clients. Afew interesting photos will always be exam-ined and may have an emotional or otherimpact that is more difficult to dismissthan the written word. Photos also serve asa preview of what may be seen in litigation,arbitration or mediation. The binder approach is superior for anumber of reasons. Presenting the facts, ar-guments and support in a detachable man-ner in a binder, as opposed to a single, longdocument, is likely to increase the odds ofyour points being read carefully and con-sidered thoughtfully. The distinct presenta-

tion of each section avoids the blurring ofthoughts and reactions. In other words, byhaving separate sections, your opponentmay more readily concede some of the is-sues and focus his or her response on nar-rower grounds. It is easier to communicatethat the defendant does not dispute the in-formation in “Tabs 1, 3 and 4,” than torefer to “paragraph 3 on Page 4 under theheader.” The demand binder also creates a significant platform for later submissionto mediation or pre-trial requirements. Itallows sections to be updated or evidentiarydocuments to be added easily. It may alsoassist the client in understanding howclaims are processed and what is necessaryto prove and win a case. These external andinternal benefits support creating writtendocuments and best practices that promotethe effective representation of clients. ⚖

• • • • •

Pittsburgh attorney Robert A. Creohas mediated and arbitrated thou-sands of cases since 1979, includinghaving served as a salary arbitratorfor Major League Baseball, a grievance arbitrator for the National Football League and a hearing offi-cer for the U.S. Senate Select Com-mittee on Ethics Office of Fair

Employment Practices. Since 1996, he has been on the mediatorroster for the Court of Arbitration for Sports in Lausanne, Switzer-land. He is an adjunct professor at Duquesne University School of Law and served as an adjunct professor at the University ofPittsburgh School of Law for many years. He was recognized byBest Lawyers in America in both 2014 and 2017 as Pittsburgh Mediator of the Year. He is the principal of Happy! Effective Lawyer(www.happy.lawyer), an initiative focusing on lawyer content-ment and peak performance. His website is www.robertcreo.com.

References and Additional Sources

Ferris Jabr, “The Reading Brain inthe Digital Age: The Science of Paperversus Screens,” (Scientific American,April 11, 2013).

Randall Kiser, Soft Skills for the Effective Lawyer (Cambridge University Press, 2017).

Gerry Spence, Win Your Case: How to Present, Persuade, and Prevail— Every Place, Every Time(St. Martin’s Griffin, 2005).

TA K E A W AY S

• Make it easy for them to say yes.• Send hard copy prior to electronic version.• Use a tone that is respectful, appreciative and nonthreatening.• Put your ask/remedy up front.• Include visuals if possible; they are always looked at.• Write for the other client, not for your own.

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