Often when a party appears in Court In Propria Persona (representing one’s self), the objective or goal one wishes to achieve is not shared by the Judge. In other words, you need to “argue” with the Judge in an attempt to change his position.
But how does one effectively argue with a Judge? Should you contradict him, explaining that he’s simply wrong? Should you criticize or reproach his position? Should you analyze the facts and argue the law? What is the best way to change the mind of a Judge? About this time you probably wished you’d retained an attorney, but since there’s no time, here are some suggestions.
Keep in mind sometimes the outcome in Court is decided by precedent of law and if that’s the case, there’s little that can done to change the outcome. However, more often than not, resolution is based upon the facts of the case and the outcome dependent on the Judge’s discretion.
Howard Gardner is a senior director at the Harvard Graduate School of Education. His current research regards changing minds: The Art and Science of Changing Our Own and Other People’s Minds (Harvard Business School Press, 2004), a book that explores the process of mind change and a systematic approach to influencing perspectives.
Professor Gardner describes several distinct “levers” that are helpful in the process of changing someone’s mind (i.e., reason, research, real world events, etc.). He suggests any one of them may be useful for a particular episode of mind changing. However, two stand out in importance: (1) Representational re-description and (2) Overcoming resistance.
Gardner suggests that many of us fail to recognize we are fundamentalists ourselves (fundamentalism is a commitment not to change one’s mind on certain issues) – not necessarily in regards to religion, but perhaps about politics, family, or science. In other words, we are entrenched in a position without reason or fact, but simply because we assume that position to be true. So before you attempt to change someone’s mind to your own position, first, as objectively as possible, defend that position to someone else (hopefully before you go to Court) and make sure it passes their scrutiny (overcoming resistence).
If your point passes this test, then maybe you can persuade the Judge. Professor Gardner states that others are most likely to change their mind if introduced to a new idea or concept in as many appropriate ways as possible. In other words, it is not enough to merely repeat a point over and over again. For example, if want someone to believe in the theory of evolution, it is useful to enforce additional ideas with visual or hands-on support such as diagrams, simulations, narratives, logical syllogisms or live demonstrations (representational re-descriptioin).
Second, overcoming resistance recognizes that individuals develop very strong theories and concepts (often misconceptions) about the world when young. These ideas tend to become entrenched and we regularly underestimate the strength and persistence of these formative ideas in others. Keep in mind the best way to challenge such an idea is to find a way to maintain them alongside a new and more suitable concept.
Third, and maybe the most important, know your judge! What are his/her biases, ideas, concepts? Is he/she most likely to be persuaded by facts, research data, rewards, real-world events, humor, or some other form of proof? Developing a “feeling” for the way the Judge thinks and rules in certain situations is critical to changing his/her mind to your way of thinking.
Keep in mind that it is your job to “KNOW YOUR JUDGE!” Before your hearing begins, you have an opportunity to “Non-Stip” a commissioner, or to Affidavit (get rid of without cause) one Judge. With that in mind, it’s a good idea (if possible) to sit in Court the day before your hearing to get a feeling for the way the Judge thinks, feels on certain subjects, and the way he/she makes decisions. If you conclude the Judge is not suited to your case, by all means exercise your right to move to another courtroom.
But if you decide the Judge is amenable to your position, keep in mind you may need to “change his/her mind” on some aspect of your case. Hopefully, the above points will assist in that process.