When you first meet someone, the process of coming to like and trust them is a delicate one. The received wisdom in communication is that this first-impression determination of trust is based mostly on nonverbal communication and is formed in a fraction of a second. Only "Not so fast," say a group of psychologists at the University of Texas at Arlington. According to their recent study (Ta, Babcock & Ickes, 2016), strangers tend to develop the mutual understanding that leads to mutually positive feelings based mostly on words and conversation. Rather than being based on eye contact, appearance, or other forms of nonverbal communication, it comes down to how they talk, and specifically the questions that pass between the two strangers.
The way the study worked is this. Pairs of individuals volunteering for a study would find themselves together seated on a couch, ostensibly waiting while the researcher ran an errand. Unbeknownst to the volunteers, however, the study had already begun as their interactions were audio- and video-recorded. At the end of a five-minute wait, the researchers individually surveyed each participant on their thoughts about the person they waited with. As you might expect, most engaged in some friendly interaction and conversation while they waited, and at the end of it, some developed some trust and liking toward the other in the room and some didn't. The researchers analyzed a wide variety of variables in order to see what helped the pair get in sync or not. Specifically, they used a computer-based analysis called "Latent Semantic Similarity" (LSS) in order to measure the extent to which the dyads created shared meaning by using words in the same ways. What they found is that the pairs obtained higher levels of mutual understanding when they exchanged more words and asked and answered more questions. In contrast, the pairs' posture, gesture, and glance seemed to have relatively little importance. “We all know it’s important to be able to establish common-ground understanding with the people you’re interacting,” lead author Vivian Ta said in a university press release. “Our study shows that the key to this is verbal, not nonverbal," and one of the most important parts of that verbal interchange is the question. So if questions are so important in developing trust, then that carries some implications for the trial setting which depends on questions in voir dire and witness examination.
In a courtroom, the emphasis on the supposedly instant effects of nonverbal communication can be a little disempowering. Once, for example, I heard a witness in a preparation session say, "If they're going to size me up in a tenth of a second and decide if I'm credible or not, there's not a whole lot I can do about that, is there?" But as important as nonverbal communication can be, it is quite possible that we have oversold its influence.
“Beginning in the 1970s, many researchers touted the power of nonverbal communication in creating first impressions and connecting with others,” said William Ickes, coauthor of the study and a Distinguished Professor of Psychology at the University of Texas at Arlington. “Our research indicates that the exchange of words in conversation is all that is really needed for the development of common-ground understanding in initial, unstructured interactions.”
So that emphasis on exchange of words brings our attention back to logos, and the exchange that language is based on. I think there are a few scenarios where lawyers, and those who work with them, can leverage the power of questions to build better credibility.
Gain Your Witness's Trust
A preparation session focusing on your own witness often involves a lot of do's and don'ts. At the same time, effective testimony depends on not just knowledge, but on comfort as well. For that reason, I like to start by asking some genuine questions of the witness: How do you feel about the upcoming testimony? What do you think your biggest challenges or biggest opportunities are? And when witnesses are having trouble testifying confidently or coming across effectively, ask why. Sometimes, by doing that before dispensing advice or commands, you'll open up some doors and gain some insight about what is motivating your witness.
Gain Their Witness's Trust
Of course, the other side's witness is never going to completely trust you -- at least not if they've been prepped. Still, there are greater and lesser degrees of trust that can be leveraged during your questioning. So, when beginning a deposition or a cross-examination in trial, it may be a good idea to lead with some open-ended and nonthreatening questions that signal to the witness that you are asking because you genuinely want to know. If you hold off on the more direct attacks and leading questions until later in the deposition, you might find that you have a more trusting and compliant witness.
Gain Your Potential Jurors' Trust
As far as your jury goes, the only time you can ask them questions is in voir dire. During that precious time, it makes sense to avoid the generally ineffective priming questions (those that begin with, "You would agree with me, wouldn't you, that...") and to instead ask mostly open-ended questions that don't signal to the potential jurors what the "right" answer is. Add a little of your own self-disclosure and you can create something that feels like a conversation. Once you get them talking, you can also pivot off their answers (by asking questions like, "How many of you agree with Ms. Smith?") in order to get a more specific sense of who merits a strike.
Gain Potential Clients' Trust
Of course, one setting outside the courtroom where you also need to cultivate trust is in business development. If you're like me, you hate mixers and dinners where you're expected to win over potential clients through conversations. But when you are in that situation, remember what the research says about the single most effective way of generating common ground and mutual understanding: Ask questions.