Neuro-linguistic programming & trial attorneys: An Exploration Into Neuro-Linguistic Programming’s Potential As an Efficacy-Enhancing Tool for Trial Attorneys



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NEURO-LINGUISTIC PROGRAMMING & TRIAL ATTORNEYS:

An Exploration Into Neuro-Linguistic Programming’s Potential

As an Efficacy-Enhancing Tool for Trial Attorneys

A Thesis


Presented to the

Faculty of

California State Polytechnic University, Pomona

In Partial Fulfillment

Of the Requirements for the Degree

Master of Business Administration

By

Evan K. Field



2008

SIGNATURE PAGE

THESIS: NEURO-LINGUISTIC PROGRAMMING & TRIAL ATTORNEYS

An Exploration Into Neuro-Linguistic Programming’s Potential

As an Efficacy-Enhancing Tool for Trial Attorneys

AUTHOR: Evan K. Field

DATE SUBMITTED: Fall 2008

College of Business Administration

Dr. Rhonda Rhodes _____________________________________________

Thesis Committee Chair

Business Administration

Dr. XYZ _____________________________________________

Business Administration

ABSTRACT

Even after 30 years of theoretical and practical development of NLP since its establishment as a discrete area of study in the 1970s, there are still widely differing interpretations, definitions, and beliefs surrounding NLP. As a result, a broad selection of “flavors” of NLP exists in the market, supported by proponents and trained practitioners looking to create their own niche. Exacerbated by these individuals’ sensational claims – even when verifiable – and the apparent similarity between NLP and many new age concepts, the deliberate and intentional use of NLP has yet to achieve widespread acceptance in many fields. Instead, much of the documentation on the practical application of NLP seemed characterized by anecdotal experiences of individuals in a wide range of circumstances and conditions instead of controlled scientific studies, which, upon further reflection, is quite understandable given the very nature of NLP. Specific to this study, it was discovered that while literature on both NLP and courtroom strategy abounds, there is a limited amount of relevant and reliable data – empirical or otherwise – regarding the intersection of the two: deliberate use of NLP in courtroom tactics and trial strategy. It became clear that more must be learned about the specific application of NLP tools and techniques to the practice of law, particularly in the courtroom, before being able to develop a distinct hypothesis regarding this subject matter with any confidence. Therefore, the goals of this study are to:



  1. Gain a foundational knowledge and understanding of NLP, its tools, techniques, and practices;

  2. Identify heavily-stressed fundamental skills a trial attorney must practice as propounded by literature on courtroom techniques and trial strategy and as taught in law school; and

  3. Determine if there appears to be sufficient connection or similarities between these two topics so as to warrant a subsequent, more in-depth study of NLP’s use in trial law.

TABLE OF CONTENTS

Signature Page . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Abstract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Literature Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Research Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .


INTRODUCTION

1.1 Background

NLP, or Neuro-Linguistic Programming, is quickly gaining traction as a proven way to explore and maximize human potential. Described as the study of the structure of subjective experience and what can be learned from it (Bandler, 1993), it can be found at use in a number of settings including business, professional sports, the military, government, and personal development. It has emerged as a viable industry, spurring a host of students, practitioners, and trainers internationally (Tan, 2006).

This rise in prominence of NLP has left those with interest in human potential wondering how to apply the techniques and tools of NLP for improving personal qualities and traits. Users can include salespeople, business executives, managers, attorneys, teachers, trainers, therapists, doctors, athletes, entertainers, and many more (Dilts, 1999). The flexibility and pragmatic design of NLP techniques enable them to be adapted to virtually any situation or circumstance, and can have dramatic effects, both positive and negative. This study will investigate the correlation and applicability of principles and techniques of NLP to the practice of law, with an emphasis on litigation.

1.2 Problem Statement

This research will compare the primary techniques and presuppositions of NLP to skills identified as essential to attorneys engaged in litigation. The following broad steps have been identified to help organize and analyze the results of the research:



  1. Compile a list of essential skills and personal characteristics for practice in litigation based on opinions and input of attorneys;

  2. Distill the fundamental beliefs and techniques of NLP and their targeted area of improvement; and

  3. Determine the association, if any, between these targeted areas of improvement and skills employed in litigation.

1.3 Importance of Problem

NLP has immense potential. Used incorrectly, it can cause significant negative disruption of an individual’s mental, emotional, and even physical well-being. Applied correctly however it can produce powerful changes, such as improving self esteem, increasing persuasiveness, enhancing communication skills, and reducing or reversing the damage of prior negative events or memories (Tan, 2008).

Trial attorneys must practice a number of seemingly intangible skills, most notably (or at least most ostensibly) persuading judges and juries to rule in their favor. As competing sole-practitioners and firms seek methodologies for improving their effectiveness in such a complex and multi-faceted profession, determining what, if any, potential the implementation of NLP techniques can have on enhancing performance will enable attorneys to evaluate the merits of utilizing NLP in their own practices.

1.4 Qualitative Study

The application of NLP to trial law is an area that, while documented to an extent, still leaves much to be researched and discovered. As a result, a methodology that allows for further exploration prior to developing specific theories or hypotheses will be more appropriate for this study. The grounded theory model of research provided a usable and effective method for proceeding. The flexibility of the framework would allow for investigation of the subject matter from a variety of perspectives and viewpoints, enabling the researcher(s) to gain a more thorough and holistic understanding of the subject matter. In addition, the qualitative nature of the study meant that as additional research and exploratory results were obtained, the study itself could be modified and refined as necessary. This will ultimately result in the formation of relevant, applicable, and better-constructed hypotheses for subsequent testing.



1.5 Definitions

A number of words and concepts found in the body of text can be defined in various ways. The following definitions are intended for these words and concepts, unless otherwise indicated.



Firm, Practice

The entity as a part of which one or more attorneys are practicing law. This category also includes sole-practitioners, though at times the text may make reference to both. References to individual attorneys are just that – the individual person, be they a sole-practitioner or members of a firm. Recognizing that firm culture may vary significantly in different branch offices, specific references to branch offices will be included when necessary (e.g. Kreig DeVault LLP, Indianapolis office).



Litigation

Effectively pursuing litigation requires numerous activities in addition to performance in the courtroom. For sake of simplicity, litigation as used in this report will refer to the broad spectrum of litigation-related activities, which may include things like evidence evaluation, witness interviews and preparation, negotiation, etc. in addition to actual courtroom presentation.



Neuro-Linguistic Programming (NLP)

A set of models and principles meant to explore how mind and neurology (neuro), language patterns (linguistic), and the organization of human perception and cognition into systemic patterns (programming) interact to create subjective reality, experience and human behaviors (Dilts, 1999).



Using/Practicing NLP

It can be argued that we all use NLP as a part of our daily regimen, often subconsciously. For example, emulating behavior, appearance, or language to “fit in” socially is very similar to a NLP technique for establishing rapport. In the context of this study however, references to using NLP are intended to denote those parties that are knowingly and deliberately applying principles and techniques of NLP in an attempt to produce specific results, such as individuals that hold themselves out to the general public as practitioners and trainers of NLP techniques.



1.6 Limitations & Assumptions

There are several assumptions and limitations bounding the data being gathered and analyzed.



  • It is assumed that attorneys are self-aware with regard to what skills and characteristics are essential to effective performance in litigation-related activities.

  • It is assumed that individuals providing responses to survey instruments will do so truthfully and accurately.

  • The determination of the correlation between NLP’s principles to primary skills and characteristics of attorneys engaged in litigation is not a definitive statistical measurement. Rather it is an observation and claim supported and substantiated by research that there appears to be, or not be, a correlation between the two and that there exists areas of legal practice that hold a commonality with NLP principles.

  • The research is focused on those firms or individual attorneys who are engaged in activities related to litigation (as opposed to purely transactional, assurance, advisory, etc.).

1.7 Summary

NLP is a powerful tool that may be able to significantly impact the practice of law in preparation for and during trial. This chapter has clearly defined the subject of research, highlighted its importance, introduced the framework for conducting the research, defined terms and concepts to be used, and presented the limitations and assumptions of the research. Chapter 2 will introduce a review of literature and publications dealing with NLP and its potential uses by trial attorneys. Chapter 3 will explain the methodology of gathering the data, Chapter 4 will present an analysis of the data, and Chapter 5 will offer a conclusion and recommendation for the reader.



LITERATURE REVIEW

2.1 Overview and Definition of NLP

Even after 30 years of theoretical and practical development, there are still widely differing interpretations, definitions, and beliefs found in the literature regarding Neuro-Linguistic Programming (NLP). A broad selection of “flavors” of NLP exists in the market, supported by proponents and trained practitioners looking to create their own niche. Ironically, one of the characteristics that makes NLP so powerful – its flexibility to be adapted to each individual’s specific needs and mental, emotional, and physical state – contributes to the difficulty in presenting a concise and universally accepted definition.

One definition of NLP is a form of psychotherapy and a model of interpersonal communication (Colman, 2006). Another common phrase used to define NLP is “the study of the structure of subjective experience” (Dilts, 1980). Other sources describe it as a system for using the language of the mind to consistently achieve specific and desired outcomes (Tad, 2004). These, and the many other “definitions” of NLP as put forward by its practitioners, generally center around several main concepts, which by explaining may provide a better understanding of this “art and science” that is NLP (Dilts, 1980).

The human brain is in many ways analogous to an extremely powerful computer the controls the rest of the body. The nervous system enables people to experience the world around them by gathering signals from the five senses: visual, auditory, kinesthetic, olfactory, and gustatory (Bavat, 2003). These signals are processed by the brain to create an internal representation of that experience, such as pictures, sounds, feelings, smells, and tastes that are associated with that experience. This internal representation in turn creates an emotional state – happy, sad, excited, fearful, etc. – which has corresponding behaviors (James, 2005). This behavioral reaction is not fixed; rather it has been uniquely programmed into each individual’s brain much like software on a computer. This “software” can be changed, if the individual knows the right language with which to instruct their mind. NLP is that language (Hoag, 2008).

NLP draws its name from this concept. “Neuro” refers to the brain and the nervous system, through which humans perceive the world around them. “Linguistic” refers to language, the means by which people communicate internally with themselves and with each other. “Programming” refers to the way the mind creates representations of experience and the affect on physiology and behavior (Dilts, 1999).

A model of how the brain processes information perceived by the senses is presented on the following page (James, 2005).





2.2 History of NLP

NLP originated in the early 1970s with the work of linguistics professor John Grinder and computer programmer Richard Bandler. Drawing a variety of ideas in circulation at the time, they studied and explicitly modeled three distinguished therapists in particular: Fritz Perls, co-creator of gestalt therapy, Virginia Satir (renowned family therapist), and Milton Erickson, a highly successful hypnotherapist and psychiatrist (Dilts, 1999). Grinder and Bandler focused on the mental, physiological and linguistic patterns that set these highly successful therapists apart from their peers, and codified their findings in several books throughout the 1970s. The premise was that by identifying those patterns that led to excellence, others could also achieve excellence by following these models. This use of modeling as a tool or technique to bring about rapid and effective behavioral change is one of the hallmarks of NLP (Love, 2001).

NLP continued to develop theories and methodologies, and garnered followers in a wide variety of fields (Dilts, 1999). However reviews in The Journal of Counseling Psychology and by the National Research Council, part of the National Academy of Sciences, described NLP as being an unproven technique and its assumptions lacking in empirical evidence (Sharpley, 1987; Druckman, 1988), lending credence to critics who view NLP as another eclectic New Age theory with no scientific grounding. Despite this, the industry around NLP continued to grow and attract avid followers (Carter, 2001).

The last fifteen years has seen a splintering of the NLP community. There was a falling out among the group who initially developed and advanced NLP, along with a number of legal disputes over intellectual property issues (Grinder, 1997; ANLP, 2001). This has been further complicated by the lack of standards or best practices with regard to NLP certification or training. As a result, practitioner competence, skills, and attitude vary widely throughout the industry (Schutz, 2008), resulting in the wide variety of “flavors” of NLP alluded to at the beginning of this section.



2.3 Principles and Theories of NLP

NLP is built upon a number of principles and presuppositions. Due to the splintering of the NLP community mentioned above, practitioners are not always consistent in their presentation of some of the principles. One of the most fundamental premises of NLP is that “the map is not the territory.” Bandler and Grinder borrowed heavily from the writings and teachings of Alfred Korzybski, a Polish-American philosopher and scientist, in developing their principles of how people develop representations of the world (Bandler, 1975). The expression conveys the idea that an abstraction of something, or a reaction to something, is not the thing itself, just as a map is a representation of the land but not the actual land itself. As applied to human experience, people’s brains create representations or maps of sensory input, which is what each individual considers to be “reality” (Love, 2001). This model of reality determines their feelings, thoughts, and behaviors, much like the behavior of a navigator would be dictated by his or her map. The danger is that maps can become “outdated” or lose validity as life changes (Hoag, 2008). To address this issue and achieve consistent success and excellence, the goal – through NLP – is to create the richest map possible so that the individual can perceive the greatest number of choices and perspectives (Dilts, 1999). A list of other common principles and presuppositions of NLP is presented here.



  • Respect for the other person’s model of the world.

  • Behavior and change are to be evaluated in terms of context and environment.

  • Resistance in a client is a sign of a lack of rapport. There are no resistant clients, only inflexible communicators. Effective communicators accept and utilize all communication presented to them.

  • People are not their behaviors. Accept the person; change the behavior.

  • Everyone is doing the best they can with the resources they have available. Behavior is geared for adaptation, and present behavior is the best choice available. Every behavior is motivated by a positive intent.

  • Calibrate on Behavior – the most important information about a person is that person’s behavior.

  • Each person is in charge of their mind and therefore their results.

  • People have all the resources they need to succeed and to achieve their desired outcomes. There are no unresourceful people, only unresourceful states.

  • All procedures should increase wholeness.

  • There is no failure, only feedback.

  • The meaning of communication is the response received.

  • The system/person with the most flexible behavior will control the system.

  • All procedures should be designed to increase choice.

2.4 Techniques and Applications of NLP

One of the most common applications of NLP is to assist in establishing rapport with other individuals. Derived from the French verb rapporter meaning “to bring back,” the English word rapport refers to a relationship or communication characterized by harmony (Sandoval, 2001). Because life will inevitably involve interaction with other people, the ability to consistently communicate effectively with others is invaluable. In fact it has been argued that communication skills are the most important professional asset because without them, one can not motivate or exert influence (Rankin, 1999).

A specific technique NLP proposes for developing rapport is called “matching and mirroring.” This consists of copying one or more aspects of the nonverbal communication in such a way as to create the perception – usually subconscious – that you are similar to the other person (Bayat, 2003).

Another common technique of NLP is called anchoring. Anchoring was described by Bandler and Grinder as the tendency for any one element of an experience to bring back the entire experience. Anchors can be any unique sensory stimulus such as a gesture or a touch, and can be set up intentionally to trigger a desired response by enacting the anchor (Kirby, 1995). This is similar to classical conditioning and Pavlov’s famous experiment.

Another significant technique in NLP is reframing. Reframing is used to develop different ways of thinking or to shift one’s interpretation of meaning (Dowlen, 1996). The underlying concept is that any stimulus an individual receives only has meaning in the frame or context in which it is perceived. If a person views a situation as a liability, his brain will produce states and resulting behaviors that make it reality. If however that person changes how he represents that same situation to himself and perceives it as something other than a liability, he can change his states and behaviors (Robbins, 1987).

2.5 Review of Skills Required by Trial Attorneys

Law is an extremely diverse profession, so much so that there is no “typical” lawyer. There are, however, a number of basic skills that are generally required of all lawyers. They include (Schwartz, 2008):



  • Legal analysis

  • Reading comprehension

  • Impromptu public speaking

  • Rehearsed public speaking

  • Listening

  • Empathy

  • Workload management

  • Factual investigation

  • Questioning other people

  • Brainstorming solutions to problems

  • Synthesizing

  • Selecting from among possible solutions to problems

  • Negotiating

  • Researching

  • Helping people in conflict work out compromises

  • Identifying connections among ideas

  • Passion

From this list, though not by any means exhaustive, it appears that an attorney will spend a significant portion of his time communicating with others, both in and out of the courtroom.

The importance of an attorney’s ability to communicate well is highlighted when looking closer at a selection of these essential skills (LSAC, 2008).



  • Listening: Lawyers must be able to take in a great deal of information, often on topics about which they are unfamiliar. The ability to listen to clients and understand their unique issues and concerns is essential.

  • Synthesizing: Because of the complexities of many issues and the number of laws either directly or tangentially relevant, lawyers must learn to pull together often large amounts of material into a meaningful, focused, and cogent presentation to give to others.

  • Advocating: As an advocate, the lawyer’s role is to represent his or her client’s particular point of view and interests as vigorously as possible. The American judicial system assumes that equitable solutions will emerge from the clash of opposing interests. The success of this adversarial system of American law depends upon the talents and training of the lawyers who work as advocates within it. Lawyers must be able to use their advocacy skills to marshal evidence and present arguments as to why a particular outcome is desirable.

  • Counseling: Lawyers also spend a good deal of their time giving clients legal advice. Few ventures in the modern world can be undertaken without some understanding of the law. Through their knowledge of what the law involves, lawyers advise clients about partnerships, decisions, actions, and many other subjects. In many cases, the lawyer’s role as a counselor serves as much to prevent litigation as to support it.

  • Writing and Speaking: Whether in the courtroom or the law office, lawyers must be effective communicators. If lawyers could not translate thoughts and opinions into clear and precise English, it would be difficult for the law to serve society. After all, the law is embodied in words, and many of the disputes that give birth to laws begin with language—its meaning, use, and interpretation. Litigation leads to written judicial opinions; congressional enactments are recorded as printed statutes; and even economic transactions must be expressed as formal, written contracts.

  • Negotiating: One of the lawyer’s primary roles is reconciling divergent interests and opinions. When the parties to a proposed transaction disagree, the lawyer, acting as a facilitator, may be able to help them negotiate to a common ground. Although the client’s interests are a lawyer’s first priority, often those interests are served best after compromise and conciliation have paved the way to an equitable settlement. Because lawyers are trained to see the implications of alternative courses of action, they are often able to break an impasse.

2.6 Current Use of NLP in Trial and Trial Preparation

There are a number of anecdotes illustrating the use of NLP by lawyers. However there has been limited attention focused on the use of NLP in the courtroom setting as a whole (Mayers, 1993). Rather, NLP has gained traction with specific activities in the trial process, similar to the way trial consulting came into vogue. With trial consulting, marketing professors sympathetic to the cause of anti-war protesters in the early 1970s helped them fight charges of civil disobedience and other protest-related crimes by conducting telephone polls, focus groups, and interviews with potential jurors. Soon, lawyers were regularly seeking out trial consultants for assistance with a variety of facets of the trial process (Carter, 2001).

Many proponents of NLP introduce it as a way to improve communication and influence with others. More specifically, NLP can be used as an powerful technique in the courtroom that works not only with juries but with the judge as well (Carter, 2001). This ability to communicate effectively can be extended even further, for example when interviewing or examining witnesses. Once rapport has been developed between the interviewer and the witness, barriers disappear, trust grows, and information is exchanged more easily and smoothly (Sandoval, 2001).

Using NLP to better engage the jury is also taught by some practitioners. Humans are sensory beings, and by using sensory-oriented descriptions that appeal to multiple senses, the interest level of the listeners along with their attentiveness and ability to relate to the subject of the testimony will be increased (Mayers, 1993). Because everyone learns through a combination of different senses, it is important that a presentation incorporates all the avenues of juror learning in order to make a lasting impression. By being able to discern how a judge or jury learns, the lawyer is able to best present the case by telling the story in a strategically structured way (Carter, 2001). Furthermore, by using multi-sensory presentation techniques, there will be a cumulative effect on the listener’s ability to recall the presented information (Vesper, 2004).

Anchoring can also be used to improve the impact of a presentation. A lawyer can marry a message, theme, or testimony to a particular trigger such as an exhibit, a gesture, or even a specific location in the room. The lawyer then only needs to activate the trigger to recall and reinforce the anchored message for the jury (Vesper 2004). Some attorneys execute this strategy by anchoring the concept and details of a specific element of the case to a single location. Whenever the attorney returns to that spot, or even points to it, the jury recalls what they have been told about that element (Carter, 2001).

One other aspect of an attorney’s courtroom performance that is of great importance is to guide the jury to see and understand the evidence the way the attorney wants them to. NLP, through specific strategies, facilitates this transfer of information and understanding from one individual to another (Mayers, 1993). Reframing is one technique used to shift people’s interpretation of meaning by altering cause-effect relationships or changing the context. For example, in the first hearing regarding the beating of Rodney King in 1991, the defense attorneys were able to establish that the video was not as it appeared and in fact Mr. King was resisting arrest or was on drugs that put him out of control and the officers in danger. By creating this context, the attorneys were able to guide the jury into believing that the police behavior was appropriate, contributing to the acquittal of the officers. When tried in federal court however, there was not as concentrated an effort to shift the context of the video – i.e., to reframe the jury’s understanding of the evidence – but the officers instead suggested that King had it coming. Two of the officers were found guilty and sentenced to prison (Lisnek, 1993).



2.7 Summary

NLP centers around understanding how people perceive and experience the world around them, how that perception in turn affects their state of mind and ultimately their behavior, and how to utilize this understanding to accomplish various goals. Some of these goals may include enhanced effectiveness in communication, increased influence, and improved transfer of mutual understanding. NLP has mixed acceptance across a variety of fields and practices, but continues to be taught and its efficacy widely touted by supporters. Although there is some disagreement among practitioners, there are a number of principles and presuppositions of NLP that are commonly accepted.

All effective attorneys must possess certain essential skills, many of which are of particularly importance to trial attorneys. These include the ability to communicate well with others, persuade others to accept a particular position or point of view, and effectively guide others to interpret information as desired. NLP is currently being used by some lawyers in trial situations to improve their performance, though the profession has not focused a great deal of attention on the utilization of NLP as a holistic approach to practicing law.

METHODOLOGY

3.1 Selection of Research Methodology

As revealed by reputable and scientifically conducted studies (Sharpley, 1987; Druckman, 1988), there lacks conclusive and empirical “proof” that NLP can consistently and effectively bring about the changes its practitioners regularly claim are possible. Therefore the question should not be whether the researcher can conclusively assert that NLP is a valid system for improving trial attorney performance and effectiveness. Indeed, NLP is often presented as only one tool or “toolbox” (with its specific techniques being the tools) among many for enhancing personal performance and effecting behavioral changes (Bayat, 2003).

Instead, a methodology that allowed for further research and discovery prior to developing more specific theories was more appropriate for this study. The grounded theory model of research provided a usable and effective method for proceeding. The flexibility of the framework would allow for investigation of the subject matter from a variety of perspectives and viewpoints, strikingly similar to a major objective of NLP. In addition, the qualitative nature of the study meant that as additional research and exploratory results were obtained, the study itself could be modified and refined as necessary.

Ultimately, the differences in utilizing this approach will manifest themselves in the formulation, execution, and analysis of research.



3.2 Data collection

The goal of the initial research will be to probe the existence of a substantive connection between the goals and applications of NLP and the skills required of trial attorneys. Employing the methodology described in Section 3.1 above, the identification (or lack) of a substantive connection would result in the formulation of a hypothesis regarding the potential of NLP as an efficacy-enhancing tool for trial attorneys.

To explore this connection, research will be conducted to further define and present specific techniques and applications of NLP and their apparent results. Similarly, research will be conducted to better present the skill requirements and expectations of trial attorneys. A thorough comparison will be performed to determine whether the connection is strong enough to warrant a subsequent perhaps quantitative or empirical study into the efficacy (or potential efficacy) of NLP in enhancing trial attorney performance.

For ease of comparison in research objectives, a table is presented here with the two major primary research topics – NLP and Trial Attorney Skills – as the headers.






NLP

Trial Attorney Skills

Data Subject Matter

Specific techniques, outcomes pursued/desired, “typical” results

More concrete list, most critical skills defined, ranking of importance

Data Source

NLP Practitioners and Trainers

Law school students, law school professors, practicing trial attorneys

Data Location

Varies

Western State University College of Law, Loyola Law School, various office locations

Data Collection Timing

Over 1 month period

Over 1 month period

Data Collection Method

Interviews (phone/personal), surveys

Interviews (phone/personal), surveys

3.3 Summary

This study would be best suited by pursuing a qualitative design that will allow for preliminary exploration and discovery before constructing a specific, discrete hypothesis. The researcher will simultaneous explore and further define the topics of NLP, particularly the techniques and results, and essential trial attorney skills. If a comparison of the two yields a substantive connection or complementary relationship, then the groundwork will be laid for initiating a deeper study into the potential of NLP as an efficacy-enhancing tool for trial attorneys.



Evan Field – GBA 695

PLANNED REVISIONS
New Title: Neurolinguistic Programming in Law Firms: Strategic Implications for Organizational Performance
Consistent with a more qualitative approach, a discrete hypothesis will not be developed prior to the research, but rather a series of research questions/areas are formed, research conducted, and a hypothesis emerges to explain the results of the research (grounded theory methodology). Accordingly, the following set of research questions is proposed:

  1. What is NLP and what are its common tools, techniques, and applications?

  2. What individual attorney skills support the pursuit and achievement of organizational objectives/high job performance?

  3. What are (if any) the potential strategic implications for the organization of applying NLP tenets to enhance individual attorney skills?

Question (1) has (hopefully) been substantially undertaken already with the current proposal's literature review; I will likely flesh out additional detail and add additional information, possibly through some additional interviews with NLP practitioners and trainers.



Question (2) will require additional research, as some of the content in the current proposal can be used but does not address the broader issue of identifying common organizational objectives and linking them to individual skills. This area of research will draw from literature, the pedagogy and substance of legal education, and attorney interviews/surveys; the incorporation of surveys and interviews to elicit the research material would make an IRB application applicable at this stage. The methodology described in the proposal will be strengthened and clarified to better explain the utility and appropriate rigor of a grounded theory approach. Discussion points/questions used to guide research might include the following:

  • Size of the organization

  • If the organization is public or private

  • Area of practice (e.g., civil litigation, public agency, private criminal defense, business assurance and advisory, family law, estate planning, etc.)

  • Interviewee’s primary role(s) in the organization (e.g., courtroom representation/oral argument, witness interaction, firm marketing/client development, research, document drafting, etc.)

  • Level of influence in strategic decision making and direction setting for the organization

  • Top high-level priorities in the organization (e.g., particular financial goals, "win" rate, long-term stability/security, number of attorneys on staff, organizational efficiency, measurable level of client satisfaction, high economic value to client, high level of trial avoidance [e.g., through strong contractual protection, effective negotiation], recognized leadership in one or more specific markets/industries, support for certain causes/policies through case selection/pro-bono work [e.g., protection against governmental violation of civil rights, protection of criminal defendant rights, attacking "corporate greed"], etc.)

  • How are these priorities operationalized – i.e., are there specific policies or training or processes adopted in support of these organizational priorities

  • How are the organization’s performance assessed (i.e., how is success measured)

  • What individual skills do attorneys (as conveyed through training/orientation, company policy, etc.) believe affect the organizational priorities identified above, i.e, what skills, if practiced with competency when acting in an individual capacity as an advocate for the client, will have an impact on the organization's priorities

  • Why/how do these skills impact the organization's objectives

  • How substantial of an impact will improving or mastering these skills have on the organization's achievement of objectives

  • What is being done to develop these skills

The responses to these surveys and interviews will be combined with results from literature, analyzed, categorized, and summarized/key results extracted. The write-up of this research question would constitute the research findings in the final report.

Question (3) will focus on highlighting and fleshing out the emerging theory that may identify (or deny) any strategic implications for an organization of applying NLP tenets to enhance the capabilities of individual attorneys. Areas (2) and (3) are closely connected as the research process is iterative, with subsequent surveys/interviews often shaped to address and answer new questions that arise as prior research increasingly uncovers the emergent theory. The write-up for this question would be the conclusion in the final report.





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