How to Win an Argument (at the U.S. Supreme Court, or Anywhere Else): A Primer by Litigator Neal Katyal

Do you like being right? Of course, everyone does. Are you successful at convincing others? That’s a tougher one. We may politely disagree, avoid, or scream bloody murder at each other, but whatever our conflict style, no one is born, and few are raised, knowing how to persuade.

Persuasion does not mean coercion, deceit, or manipulation, the tactics of con artists, underhanded salespersons, or stereotypically untrustworthy lawyers….

Persuasion is about shifting others’ point of view, respectfully and charitably, through the use of evidence and argument, ethical appeals, moving stories, and “faith in the power of your ideas,” as Neal Katyal explains in his TED presentation above, “How to Win an Argument (at the U.S. Supreme Court, or anywhere).”

Katyal’s job as a Supreme Court litigator makes him an authority on this subject. It may also distract you with thoughts about the current Court power struggle. Try to put those thoughts aside. In places where reason, evidence, and ethics have purchase, Katyal’s advice can pay dividends in your quest to win others over.

In his first case before the Court a “handful of years” after the 9/11 attacks, he represented Osama bin Laden’s driver in a suit pressing to recognize Geneva Convention rules in the war on terror and to rule Guantanamo unconstitutional. His opponent, the Solicitor General of the U.S., had argued 35 cases before the court; “I wasn’t even 35 years old,” Katyal says. He won the case, and he’ll tell you how.

His most important lesson? Winning arguments isn’t about being right. It isn’t about believing really, really hard that you’re right. Persuasion is not about confidence, Katyal insists. It’s about empathy. Oral arguments in the courtroom (which judges could just as well read in transcript form) show us as much, he says.

When his legal expertise was not helping in preparation for the big trial, Katyal felt desperate and hired an acting coach, who trained him in such techniques as holding hands while making his arguments. What? Yes, that’s exactly what Katyal said. But he did it, and it worked.

Holding hands with the Justices isn’t an option in court, but Katyal found other ways to remind himself to stay close to what mattered, wearing accessories his parents had given him, for example, and writing his children’s names on a legal pad: “That’s why I’m doing this, for them. To leave the country better than I found it.”

Once he had established his private reasons for caring, he was ready to present his public reasons. As the old saying goes, “people don’t care how much you know, until they know how much you care.” The facts absolutely matter, yet the burden of showing how and why facts matter falls to the persuader, whose own passion, integrity, commitment, etc. will go a long way toward making an audience receptive.

This advice applies in any situation, but if you’re wondering how to move Katyal’s advice online…. well, maybe the ultimate lesson here is that we’re at our most persuasive when we’re close enough—physically or virtually—to take somebody’s hand….

Related Content:

Read An Illustrated Book of Bad Arguments: A Fun Primer on How to Strengthen, Not Weaken, Your Arguments

Literary Theorist Stanley Fish Offers a Free Course on Rhetoric, or the Power of Arguments

How to Argue With Kindness and Care: 4 Rules from Philosopher Daniel Dennett

Josh Jones is a writer and musician based in Durham, NC. Follow him at @jdmagness

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