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Eric Oliver began his career as a trial consultant in the 1980s by teaching lawyers a simple, non-verbal communications technique called “mirroring.”

Oliver, who at the time was teaching communications and persuasion techniques to marketing professionals at major companies, was asked to work with a group of Minnesota trial lawyers.

His sessions were so popular that within a year, Oliver began working exclusively with attorneys.

Twenty five years later, Oliver is still teaching lawyers a variety of verbal and non-verbal communications skills. One of the most basic, but important, skills he teachers lawyers is how to mirror, or match, some part of the behavior of jurors, clients and even judges.

Oliver, head of MetaSystems, a Canton, Mich. trial consulting firm, provides a step-by-step guide to mirroring in his new book, “Persuasive Communications: 25 Years of Teaching Lawyers.”

In a recent interview with Lawyers USA, Oliver discussed the benefits of mirroring and shared some tips on how to use it effectively in the courtroom.

How is mirroring different than mimicking someone?

If you’re looking at it from the outside, there is no difference. If you walk up on a couple of people that are mirroring each other, you would not know if someone was consciously pushing that along or it was happening naturally.

[Mirroring] is picking any particular observable behavior in the other party, whether it’s a sound they’re making, a gesture, a head tilt or the orientation of their body. If you are standing across from each other and your head is tipped to the left, I can tip mine to the right and it will be mirroring. It’s a natural phenomenon. The one people pick up on is speech. If a judge is talking really slowly on the bench and you normally talk faster, your speech will slow down whether you notice it or not.

How can a lawyer use mirroring during a trial?

Let’s say during voir dire I find out from Juror No. 3 that he has a strong interest in hard-data proof of cause in my case. He’s likely to be the guy that’s going to drive that discussion when they get into deliberations – a critical point for my case if I’m a plaintiff that has to prove cause.

As I start to work with the expert who’s going to prove that issue, I want to make sure I have the full attention of Juror No. 3. So, as I am walking up to the witness, I’m also close enough to the jury box so that I can be reading and mirroring responses from Juror No. 3. Once I’ve got his attention, then I can turn to the witness.

The most common responses you’ll see are: more direct eye contact; movement of the head, which often looks like a nod; and movement of the corners of the mouth, which often, but not always, looks like a smile.

Then you turn and look at the witness. And you do the same with the witness as you’re asking the key question. Now, you’ve got the witness’s attention. So at the point you ask the question that counts, you take his attention with your hand, turn, and point at Juror No. 3. Now, you’ve got two people as engaged as they can get in interpersonal communication.

Can you use mirroring with a judge?

I recently started ongoing training with a law firm aimed at using mirroring and other rapport and persuasion techniques to improve their success arguing before the bench – especially with people they would term “hostile” judges.

For most trial lawyers practicing in a certain venue, bumping into certain judges is a long-term problem. Mirroring can set the ball rolling in a whole different direction, even after years of bad outcomes. You see, what we think inside is reflected on our outsides. You cannot think your way out of that just by saying something like, “Don’t show how much you dislike this judge!” to yourself.  As a matter of fact, research says that makes it worse.

But as I showed these attorneys, if you give your mind something else to do – mirroring and establishing more complete rapport with the judge – you can’t keep acting out of your fear, animosity or frustration. Doing something different is what that situation demands, if you want better outcomes down the road.

Does it automatically turn on the empathy switch for every hostile judge? Of course not. But it interrupts the ongoing pattern of reinforcing rotten outcomes and moves you in a new, more productive direction in your communication with that judge.

Once you establish better rapport, the door is open to using a more productive frame for your arguments with a judge.

What is the risk you’ll get caught mirroring someone?

Two common worries are “getting caught” and “forgetting what I was going to say.” You don’t want to practice this for the very first time in the biggest case you’ve ever had. You practice over dinner or at the airport with a flight attendant. There are hundreds of times during the day where you have time to practice this with people you’re never going to see again.

Isn’t mirroring a way of manipulating other people?

You have an option of using what people already have in their system to increase rapport, even up to the level of empathy, with anyone you meet. I don’t see that as manipulation; I see that as good communication.

It sounds so simple. Why don’t more lawyers use mirroring?

The technique is simple, but it’s not easy. People don’t use it primarily because they feel daunted trying it, and instantly give in to the feeling. Trial lawyers are not as gutsy as some think, if their gut feels funny about something.

Only plowing through it to get positive results starting to pile up will overcome that natural reluctance. Interestingly, that same gut feeling is what’s aroused by fears of lawyers and tort-reforming biases. And, ironically, overcoming that feeling to mirror such jurors is one sure-fire way to reach them despite those fearful feelings. Kind of pretty in its awful symmetry, isn’t it?

Questions or comments can be directed to the writer at: nora.tooher@lawyersusaonline.com

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