Daniel Ortiz Photo by Tom Cogill
There are differences between arguing a case in front of the U.S. Supreme Court and persuading a bank teller you did deposit that check that is not showing up on your statement. Both of these cases present different challenges, but they are similar in one way: Winning matters a great deal. Few people are as practiced or eloquent on the topic of persuasion as U.Va. law professor Daniel Ortiz. After studying English and math at Yale and English drama at Oxford, he earned his law degree and, early in his career, clerked for U.S. Supreme Court Justice Lewis F. Powell Jr. and then-U.S. Circuit Judge Stephen Breyer. He went on to teach law at the University of Southern California and Berkeley as well as U.Va. He still keeps his hand in the practice of law, chairs the Law School Admission Council—a legal educational nonprofit organization—and teaches classes such as the Supreme Court Litigation Clinic, in which U.Va. law students work on cases before the Supreme Court.
To make a convincing argument, whether it’s to a judge or a bank teller, Ortiz stresses the importance of empathy. Imagine where those you are trying to persuade are coming from and anticipate their questions and arguments before they make them. He says that sometimes two people frame a single situation in unlike ways. If you recognize—from a person’s question or their argument—that your opponent is framing the situation differently from you, try to address the set of assumptions underlying the argument and seek common ground on more fundamental concerns.
“In teaching, too, I find that sometimes the question a student asks me doesn’t really get to the point. Instead of answering that question, I use the time to help them understand the background better so that they can ask a more salient question,” says Ortiz.
Ortiz on Persuasion
- Listen and show it by addressing concerns specifically.
- Prepare thoughts beforehand but always give the impression of thinking on your feet and being actively engaged.
- Appear candid, but don’t be overly forthcoming, particularly at the outset.
- Modulate your presentation physically and verbally—dynamic voice and movement make you appear engaged.
- Take the attitude that you are trying to persuade, not defeat.
- Avoid conflict—try to strengthen rather than damage your relationship with the person across from you.
- Seek common ground. Often, our differences are far less compelling than the common purposes underlying them. Examine the framework of each question and argument to discover where the other person is coming from and build from there.
When persuading a group, the challenge is twofold: to understand the unique perspective of each individual and address it accordingly without alienating any member of the larger group.
What image should we project that will be most advantageous in an argument? A balance of confidence and self-effacement: Seem assured but not arrogant, open and nondefensive, but forceful and unequivocal in your position. Appear actively engaged, show that you are thinking things through rather than repeating preformulated arguments. Respect is the basis of any intellectual exchange; if the person weren’t worth persuading, you wouldn’t try. You never want to damage the relationship you have with the other person, especially in an argument.
What if the other person can’t be brought around? “Concede,” Ortiz advises. “Often this can be a helpful way to reclaim common ground and express respect for the other person despite the differences you have. Frequently, conceding a point to someone can preserve a good relationship and strengthen your position in the larger cause.” While you may lose a small battle, humility can work for you in the end.
After conceding, withdraw gracefully and engage your energy elsewhere. If you feel you should have won, it’s often because you took the argument too seriously.
And if you win? “Never appear as though you value being a gladiator,” says Ortiz. You can use humor, especially making fun of yourself, to show that you do not take yourself too seriously or desire any psychological gain for having won an argument.
Finally, Ortiz urges us to keep things in perspective. Often when we argue, less is at stake than in the Supreme Court or even with the bank teller. He likens quotidian arguments to a game of chess. “It’s the intellectual stimulation that’s valuable, not winning. And in the end, the game itself is all that’s at stake, nothing more.”