The Power of Priming in Legal Advocacy: Using the Science of First Impressions to Persuade the Reader

The contribution of this Article is the synthesis of legal advocacy and the psychological studies of priming. It shows advocates how priming can help them make better strategic decisions in their briefs and gives specific examples of different ways to use priming in persuasive writing. Part I defines the basic concept of priming and gives examples of different ways that priming works. Part II begins the application of the priming studies to law. The focus of Part II is on priming the reader\u27s emotional response through theme and story. It also examines how emotions can impact decision making in unexpected ways. Part III moves from emotional priming to semantic priming. It examines how to influence the decision maker\u27s view of the case by using particular vocabulary and description in key, strategic places in the brief. Finally, Part IV focuses on the risks of priming, as well as the limitations of the priming studies as applied to law. Ultimately, it calls for additional studies of priming in the legal context

Playing With Fire: The Science of Confronting Adverse Material in Legal Advocacy

The Article seeks to use the science to determine what treatment of adverse information is most beneficial to the client\u27s position. A careful study of the science reveals that, overall, it is advantageous for the advocate to volunteer negative information and rebut it early, and that a direct and in-depth confrontation of negative information is generally more effective than an indirect and cursory treatment. A close look at the finer points of the data, however, reveals that the question of disclosure is a complicated one. Therefore, legal advocates should learn about the research findings and the theories underlying the research in making the decision about whether to volunteer adverse information. For example, the general rule favoring disclosure applies where the advocate has a competent and effective refutation for the information; when such a refutation is not available or is weak, the advocate may be better off not disclosing. Moreover, the data also reveal that there are somewhat surprising reasons for the persuasive advantage of preemptive disclosure that go beyond the conventional wisdom of boosting credibility. Advocates who fully understand the reasons underlying the persuasive value of disclosure will be better guided in their decision making about when to disclose. Moreover, teachers of advocacy will be better able to guide their students. Advocates who arm themselves with deeper knowledge of how people react to the disclosure of negative information will be in a better position to make decisions for their clients, and will have a better feel for the winning strategy

Feminist Legal Writing

To lay the groundwork for the exploration of feminist legal writing, this Article first summarizes the traditions and conventions of persuasion and persuasive writing-how they are characterized in law and how they are taught in law school. It then summarizes a type of language in linguistic theory called antilanguage, which is language created by groups in society that are outcasts or otherwise excluded from the dominant social class to rebel against the dominant class. Analyzing several pieces of feminist legal scholarship that use unconventional writing techniques, this Article identifies a type of feminist legal antilanguage. This feminist legal antilanguage uses antilanguage techniques to persuade and to convey the author\u27s substantive (feminist) message. This Article concludes that the writing of feminist legal antilanguage calls out for careful study, not only because it is unconventional and beautiful, but because its rhetorical power suggests that advocates should consider and question the conventional wisdom that defines legal writing, persuasion, and persuasive writing

What Cognitive Dissonance Tells Us About Tone in Persuasion

This Article takes the first step in thinking about where good advocacy should draw the line between zeal and coercion. Legal advocates differ about how to navigate that line.\u27 Is the best service to the client to be found in the most aggressive, strongest, hard-line approach? Or is a more tempered, reasonable approach most likely to produce the best results? This Article looks at cognitive science for guidance on this question. One cognitive process that seems to be integral to tone is cognitive dissonance, a concept I will explain in Part II. I then take a close look at two types of advocacy strategies that exemplify the conflict between the hardline and tempered approaches to advocacy. The first advocacy strategy, addressed in Part III, focuses on how to deal with arguments and information that undermine your position. Is it best to sound like you believe your case to be ideal and that contrary arguments are wholly without merit or even spurious? Or is it best to acknowledge that there are possible reasonable counterviews while still arguing that your position has greater merit? The second advocacy strategy, addressed in Part IV, is how to approach a controversial rule or premise for which you are advocating. Is the best approach to push early and hard in support of the rule, or to ease the reader into the controversial point by taking her through a step-by-step thought process that guides her to the controversial point? The bottom line is that in both rhetorical situations, cognitive dissonance supports an advocacy approach that, while still strong in pursuit of a favorable outcome, appears more gradual, objective, and reasonable. In other words, it is often advisable for lawyers to present arguments in a way that appears to be reasonable, measured, and objective

The Paradox of the Fresh Complaint Rule

This Article explores the paradox of the fresh complaint rule, evaluates the proposed solutions, and suggests a modified rule as an interim solution. Part II of this Article explores the fresh complaint rule, from its historical roots in the English common law to its evolution in the United States, with special attention to the rationale for the rule, the requirement of freshness, and the standards for the rule\u27s application. Parts III and IV examine the paradox raised by the need for and effectiveness of the rule and its concurrent harmful effects. Part V describes proposed solutions to the paradox and suggests adoption of a modified interim rule

The Science of Persuasion: An Initial Exploration

The purpose of this Article is to enhance knowledge of effective persuasive legal writing by taking the exploration in a somewhat different direction from the traditional approaches. This Article argues that it is critical for persuasive writers to study the existing social-science data about human decisionmaking. Trial lawyers have taken serious steps to study and probe social science for ideas about how to persuade (or pick) juries. Yet, decades after Jerome Frank reminded us that judges, like juries, are human, appellate lawyers have been slow to follow their trial brethren in the pursuit of scientific data about what persuades people. Instead, the study of persuasive writing has been dominated by a kind of armchair psychology -a set of conventions and practices, handed down from lawyer to lawyer, developed largely from instinct and speculation. By and large, the information available to students and lawyers about persuasive legal writing reproduces these conventions and practices without analysis or critique, and without taking stock of the growing body of research from other disciplines that would provide some evidence about whether the conventional wisdom is an accurate account of human decisionmaking

Dealing with Hate in the Feminist Classroom: Re-Thinking the Balance

The goals of this essay are two-fold. First, by describing the experience the author had in Law and Feminism, the essay will show how hateful and harassing speech in a seminar devoted to issues of gender, race and sexuality can rob students of important educational experiences. The story of the author’s class is meant to remind legal educators and administrators of the concrete harm, both personal and educational, of hate speech. Too often the hate speech debate focuses on the theoretical and the abstract; participants forget that the principles at stake have demonstrable consequences for real people. Second, while this essay does not endorse university institution of hate speech codes, it does take issue with the absolutist position on free speech. The absolutist view is the source of the administrative policy of non-interference with student speech. In my classroom, this view allowed hate speech that was extremely disruptive to continue. In some ways, the egregious nature of the author’s experience is what makes it instructive; if the speech she describes here cannot be regulated under the absolutist approach, then that approach needs to be rethought. It is the goal of the essay to offer the author’s unfortunate experience as a way to demonstrate the need for a more balanced approach to hate speech and harassment in the law school context

Dealing with Hate in the Feminist Classroom: Re-Thinking the Balance

The goals of this essay are two-fold. First, by describing the experience the author had in Law and Feminism, the essay will show how hateful and harassing speech in a seminar devoted to issues of gender, race and sexuality can rob students of important educational experiences. The story of the author’s class is meant to remind legal educators and administrators of the concrete harm, both personal and educational, of hate speech. Too often the hate speech debate focuses on the theoretical and the abstract; participants forget that the principles at stake have demonstrable consequences for real people. Second, while this essay does not endorse university institution of hate speech codes, it does take issue with the absolutist position on free speech. The absolutist view is the source of the administrative policy of non-interference with student speech. In my classroom, this view allowed hate speech that was extremely disruptive to continue. In some ways, the egregious nature of the author’s experience is what makes it instructive; if the speech she describes here cannot be regulated under the absolutist approach, then that approach needs to be rethought. It is the goal of the essay to offer the author’s unfortunate experience as a way to demonstrate the need for a more balanced approach to hate speech and harassment in the law school context

Resistance is Futile: How Legal Writing Pedagogy Contributes to the Law\u27s Marginalization of Outsider Voices

This Article will examine the ways in which legal writing pedagogy contributes to the marginalization of outsider voices in the law. In Part II, the Article explores the two reigning pedagogies of legal writing and describes the linguistic model used to gauge how teaching law as language marginalizes outsider voices. In Part III, the Article applies the linguistic model to explore specific examples of how legal writing pedagogy may contribute to the marginalization of certain groups by focusing on audience and socializing them into the culture and language of law. In Part IV, the Article considers various solutions, all of which include the suggestion that law school must teach more critical legal theory and methodology in the first year, in a way that demonstrates how to incorporate them into legal practice. The Article concludes that, notwithstanding the practical problems associated with this suggestion, the academy should consider expanding legal writing courses to teach students to incorporate concepts of critical theory into the art of lawyering