UK: Modelling The Art Of Advocacy

Last Updated: 16 November 2008
Article by Gus Sellitto

A version of this article appeared in Legal Week on 6 November.

What makes an excellent advocate? What is that separates the excellent advocate from the average advocate, where those two advocates were called to the Bar at the same time and where they both share the same level of experience and have similar academic backgrounds? What are the qualities that allow an excellent advocate to captivate his or her audience and make powerful arguments in a persuasive fashion?

My background of working as a communications consultant to the legal profession, coupled with my interest in Neuro-Linguistic Programming, led me to explore some of the answers to these questions.

Neuro-Linguistic Programming

Neuro-Linguistic Programming (NLP) is the study of excellence; of how outstanding individuals and organisations get their results. It began by studying the best communicators and has evolved into the systemic study of human communication. Today, the tools of NLP are used internationally in sports, business, education, law, therapy, sales and many other fields.

The name Neuro-Linguisitc Programming comes from the three areas it unites: Neurology – the mind and how we think; Linguistics – how we use language and how it affects us; and Programming – how we sequence our actions to achieve our goals.

The principle defining activity of NLP is Modelling, which is the process of learning how others get their outstanding results so that they can be duplicated. For example, if you wanted to become an excellent public speaker, you would model someone like Barrack Obama; or if you wanted to improve your golf swing, you would model Tiger Woods.

In order to model effectively, NLP studies how we structure our subjective experience and how we construct our internal world from our experience and give it meaning. No event has meaning in itself, and as the saying goes 'no two meanings are the same.'

If you asked two different people how they experience the same painting or concert – what they feel, see and hear – you would find that they both attach different meanings to, and thus derive a different experience from what are the same two events. By learning how different people are 'wired' – and in particular by learning what makes those who excel at their art excellent – we can add richness to our experiences and become more effective in the areas in which we wish to excel.

The Modelling process

I carried out in-depth interviews with experienced advocates who are excellent at what they do. I also spent a week in the civil and criminal courts observing the advocacy process. Finally, I studied the language patterns used in a selection of court cases.

It is important at this point to emphasise what I was not doing. I was not seeking to discover what technical and academic skills equip an advocate to be proficient in court – i.e. the formal training one must go through before making it into the court room, the increased competence that comes with experience of advocacy, and the continuing professional education that advocates engage in to hone their skills. These 'formal' frameworks are taken as read.

Rather, my interest was to analyse the conscious and unconscious processes that the excellent advocate employs to make them excellent. This is the first phase of the modelling process, whereby you focus on the behaviour and physiology of the model (what he or she does), his or her internal thinking strategies (how they do it) and the supporting beliefs and assumptions of the model (why they do it).

The second phase of the modelling process involves refining the process to see which elements are essential to the success of the person being modelled and which elements are not. The final phase of the modelling process involves testing –i.e. teaching the skill that has been modelled to other people.

Five habits of highly effective advocates

In summarising my research I found that excellent advocates shared the following NLP characteristics that could be modelled and repeated.

1. The Meta Model and the richness of language

George Orwell once said: "If thought corrupts language, language can also corrupt thought". The excellent advocate makes sure that they say what they mean, understands as clearly as possible what other people mean and enables people to understand what they mean. It is about reconnecting language with experience. Excellent advocates exploit the strengths and weaknesses of language.

NLP has a very useful map of language which is known as the Meta Model. In very simple terms, the Meta Model looks at how thoughts are translated into words with the aim of gaining a fuller understanding of what people say and mean. A human being will have a complete and full idea of what she wishes to say; this is called the deep structure in NLP. The deep structure is not conscious. We shorten this deep structure and what we actually say is called the surface structure.

In order go from the deep structure to the surface structure, we do three things. Firstly, we will only select some of the information available in the deep structure. This is known as deletion. Secondly, we will give a simplified version which will inevitably distort the meaning. This is known as distortion. Thirdly, we will generalise. The Meta Model is series of questions that fill in the missing information, reshapes the structure and elicits specific information to make sense of the communication. This process allows you to make sense of other peoples' maps of the worlds and has obvious applications to the courtroom.

A simple example of a deletion is where a witness would say: 'Mistakes where made.' To fill in the deletion and get back to the deep structure, the advocate would ask: 'Who made the mistakes?' or, 'Mistakes were made? By whom?' The Meta Model consists of 13 patterns divided into the three categories of deletion, distortion and generalisation. Through my modelling research I found that excellent advocates are highly effective at reconnecting clients and witnesses to the deep structure of what they are wanting (or in some cases, not wanting) to communicate.

2. Representational systems

Representational systems deal with how we use our senses internally to think, how language relates to thought, and how we can tell the way in which other people are thinking. Visual, Auditory and kinesthetic are the primary representation systems used in Western culture. We use all three of these primary systems all of the time although we are not equally aware of them, and we tend to favour some of others. I found that when addressing the court, the excellent advocate utilises all three of the representational systems in the language they use. This is an important observation. If someone is a highly visual person, and you do not use language that appeals to their representation system, they are far less likely to engage with what you are saying. Examples of language that speaks to each of the representation systems are: 'Picture the scene (visual)', 'The alarm bells began to ring (Auditory) and 'What was your gut reaction to that event? (kinesthetic).' With regards to the advocates I modelled I found that they were all highly visual and auditory.

3. Metaprograms

Metaprograms are perceptual filters we habitually act on to help us create our own map of the world. Metaprograms are important in the key areas of motivation and decision-making. Excellent advocates shape their language to fit the other person's model of the world and subconsciously use their own metaprograms to be effective at what they do. Some of the most useful metaprograms include:

  • Proactive – Reactive. The proactive person initiates action. The reactive person will take time to analyse and understand first, before taking action. The majority of the barristers I modelled were reactive.

  • Towards - Away from. The towards person stays motivated on his or her own goals. The away from person focuses on problems to be avoided rather than goals to be achieved. The majority of my models were away from.

  • Internal – External. The internal person has internal standards and decides for him or herself. The external person takes standards from outside and needs direction from others. The majority of my models were internal.

  • Options – Procedures. Options people need choices and are good at developing alternatives. Procedures people are good at following a fixed series of steps. The majority of my models were procedures people.

  • General – Specific. General people are most comfortable dealing with large chunks of information. They do not pay attention to details. Specific people pay attention to details and need small chunks of information to make sense of a larger picture. The majority of my models were specific.

4. Rapport

Rapport is about establishing and maintaining a relationship of mutual trust and understanding between two or more people and the ability to generate responses from another person. I found that excellent advocates build rapport with each of their audiences by respecting and appreciating another person's model of the world while keeping their own integrity. Understanding metaprograms and representation systems are key elements in building rapport.

5. Pacing and leading

Pacing is the process of gaining and maintaining rapport with another person over a period of time by joining them in their model of the world. You can pace beliefs as well as behaviour. The excellent advocate is able to join a person in their model of the world and can lead them in a different direction (this is not to be confused with asking leading questions). Pacing is about establishing a bridge, through rapport and respect. Leading is changing your behaviour so the other person follows. Leading will not work without rapport.

When I asked one the barrister's I modelled to define good advocacy, he borrowed from the Hitchhiker's Guide to the Galaxy in his response: "A good advocate is someone who cannot only talk the hind legs off a donkey, but can also persuade the donkey to go for a walk afterwards." It is my belief that through employing some of the techniques described in this article the good advocate can become great – and the donkey will find itself taking a very long walk.

Gus Sellitto is an NLP Master Practitioner and a director of Byfield Consultancy, communications consultants to the legal profession.

Acknowledgements

Particular thanks go to: Timothy Dutton QC, Michael Todd QC, David Reade QC, Judge Alistair Norris QC.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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