But of course! Not of the leather, whips and chains variety, though.
“Dominance and submission” at appellate oral argument is one of the areas taken up by UNLV law professor Michael Higdon in his forthcoming Kansas Law Review article, available now at SSRN: Oral Argument and Impression Management: Harnessing the Power of Nonverbal Persuasion for a Judicial Audience. From the abstract:
As you will see in the article, nonverbal communication goes well beyond simple hand gestures, but also encompasses how a person speaks, how a person dresses, a person’s facial expressivity, and even such things as a person’s posture and head position. Furthermore, social science research reveals that both these and other nonverbal cues can greatly impact the perceived credibility and persuasiveness of a speaker. Not only that, but in many instances, listeners tend to place even more reliance on what a speaker is saying nonverbally than the actual substance of the speaker’s presentation. Given that attorneys should seek to maximize their persuasive potential during oral argument, knowledge of this research and these various principles is essential. Section III of my article explores this research.
Of course, what makes nonverbal persuasion somewhat different for oral advocates comes from the fact that the attorney is directing his argument not to a jury, but to a judge. As my article details, one of the ways a speaker nonverbally increases his ability to persuade is by employing nonverbal cues that enhance the speaker’s perceived dominance. When appearing before a judge, however, the attorney must keep in mind that 1) it is the judge who is most dominant and 2) the judge expects nonverbal cues from the attorney that the attorney understands this hierarchy. Again using social science research, Section IV of my article explores this balancing act between dominance and submission and offers concrete advice on how oral advocates can navigate that somewhat thorny issue.
If you ever feel like testing out this theory of dominance and submission, just interrupt one of the judges while he or she is speaking. You’ll usually learn who’s dominant pretty damn fast.