Tuesday, September 12, 2023
Yes, the Barbie movie is everywhere but with good reason. It touches on numerous aspects of gender roles in society, including our legal system.
Warning: spoiler alert if you haven’t yet seen the movie.
At the beginning of the movie, the audience is taken on a tour of Barbieland, including a scene where Lawyer Barbie appears to be arguing Citizens United[i] before an all-female Barbie Supreme Court. After expressing that “money is not speech and corporations have no free speech rights,” Lawyer Barbie states:
“This makes me emotional, and I’m expressing it. I have no difficulty holding both logic and feeling at the same time. And it does not diminish my powers. It expands them.”[ii]
Many female lawyers reacted positively to this quote, stating things like, “Being a female lawyer and hearing this line hits different after being told ‘facts not feelings’ in the courtroom over and over again.”[iii] This reaction is not surprising because, “[g]enerally, we tend to think that people are either rational or emotional, but they can’t be both.”[iv] And “[w]hen a woman’s arguments are attributed to her emotions, it suggests she’s not thinking clearly or rationally. As a result, the legitimacy of her arguments weakens.”[v] But Lawyer Barbie was applauded for her dual display of logic and emotion because, in Barbieland, “all problems of feminism and equal rights have been solved.”[vi]
While there are obvious feminist implications related to the interplay of emotion and logic in law, I want to focus more on the general question of what role—if any—emotion should play in good lawyering, given the “long intellectual tradition that dichotomize[s] reason and emotion.”[vii]
Though Aristotle famously said that “[t]he law is reason unaffected by desire,” he also recognized that pathos (appeal to emotion) is one of the three pillars of effective persuasion. And a recognition of emotion’s effect on legal doctrine is weaved throughout our justice system. In criminal law, for example, victims are allowed to give victim impact statements at sentencing, and a defendant may be convicted of a lesser degree of homicide if the evidence shows provocation by sudden passion. But it also reaches family law, education policy, corporate and securities law,[viii] and even constitutional theory.[ix]
Trial lawyers have long recognized the power of emotional appeal to a jury. But many attorneys “discount its value in persuading a trial judge or an appellate court.”[x] And why wouldn’t they when well-respected appellate judges declare that “jurors, like children, are more likely to make emotional judgments than judges” and refer to emotion as “a more primitive mode of reaching a conclusion”?[xi]
But “[t]he most persuasive arguments are not necessarily those that contain the most empirical data. They are not necessarily the ones that employ the tightest syllogisms or that use the most complicated forms of analysis.”[xii] Instead, “[t]he most compelling arguments are those that connect best with the imagination of those who are listening to [or reading] the arguments.”[xiii]
While opening statement and closing argument are the best tools in a trial lawyer’s toolbox for emotional appeal, what’s an appellate advocate to use?
The structure of an appellate brief largely follows the five-part argument structure advanced by classical rhetoricians: introduction (exordium), statement of the case (narratio), argument summary (partitio), proof of the case (confirmatio), and conclusion (peroratio).[xiv] An introduction in an appellate brief is the closest analog to an opening statement at trial, but not all briefs include them.[xv] But all briefs include a Statement of the Case (or Statement of Facts) and Argument (or proof of the case).
Though “the statement of facts is not a vehicle for argument,”[xvi] it is the ideal place for storytelling. The facts section is where the advocate can reveal “moral purpose”[xvii] by “describing or alluding to the human emotions that motivated the [client’s] behavior.”[xviii] A well-told story can evoke empathy from the reader, laying the groundwork for a favorable view of the legal arguments that follow.
To tell the story well, the advocate must “show, not tell” by describing the details of the scene or transaction leading to the conflict, while being mindful about the use of adjectives. Compare “a horrific car accident” with “blood-soaked grass, the car’s body crushed like a tin can, with sunlight glinting off glass shards scattered across the asphalt and the smell of burning rubber still hanging in the air.” The adjective “horrific” represents the advocate’s conclusion of the scene without showing it to the reader. But giving the reader the details of the scene leads the reader to draw the same conclusion on their own. While the party who caused the accident might prefer to use an adjective to describe the scene; the victim of the accident should use the details.[xix]
For the argument section, an advocate can weave in emotional appeal through the use of “images, analogies, metaphors, stories, symbols, and emotive language.”[xx] Advocates should consider how they refer to the parties and other players in the case. Use descriptive terms that show relationships between individuals (e.g., victim and perpetrator). People tend to feel empathy for those who have been hurt or wronged and are more likely to believe justice is served when the outcome favors the person viewed as harmed.
And, because “[a]ppellate judges view themselves as guardians of the law,” a good advocate “appeal[s] to the policies and values that underlie the rule of law” to “emotionally attract the appellate judges to the merits in the client’s position.”[xxi]
In short, emotion has a place in law and should be recognized as coexisting with logic and not as inconsistent with it. Even the stoic Dr. Spock noted that “[l]ogic is the beginning of wisdom… not the end.”[xxii]
[i] Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010).
[ii] Barbie, Directed by Greta Gerwig, Warner Bros. Ent., 2023.
[iv] Kim Elsesser, Labeling Women As ‘Emotional’ Undermines Their Credibility, New Study Shows, available at: https://www.forbes.com/sites/kimelsesser/2022/11/01/labeling-women-as-emotional-impacts-the-legitimacy-of-their-arguments-according-to-new-study/?sh=643664415b90
[vi] Barbie, supra note ii.
[vii] Kathryn Abrams and Hila Keren, Who’s Afraid of Law and the Emotions?, 94 Minn. L. Rev. 1997, 2003 (June 2010).
[viii] Id. at 2012.
[ix] See, e.g., J. Joel Alicea, The Role of Emotion in Constitutional Theory, 97 Notre Dame L. Rev. 1145 (2022).
[x] John C. Shepherd and Jordan B. Cherrick, Advocacy and Emotion, 3 J. Ass’n Legal Writing Directors 154, 155 (Fall 2006).
[xi] Richard A. Posner, Emotion versus Emotionalism in Law, in Susan A. Bandes, ed., The Passions of Law 311 (New York U. Press, 1999).
[xii] D. Don Welch, Ruling with the Heart: Emotion-Based Public Policy, 6 S. Cal. Interdisc. L.J. 55, 55 (1997).
[xiv] Michael Frost, Ethos, Pathos & Legal Audience, 99 Dick. L. Rev. 85, 94 (Fall 1994).
[xv] See my previous post, Should I Include a Stand-alone ‘Introduction’ Section in My Brief? (May 9, 2023), for considerations about including introductions, and Adam Lamparello’s post, Drafting a Strong Preliminary Statement (May 28, 2023) for drafting tips.
[xvi] Markowitz & Co. v. Toledo Metro. Hous. Auth., 608 F.2d 699, 704 (6th Cir. 1979).
[xvii] Frost, supra note xiv, at 95.
[xviii] Shepherd and Cherrick, supra note x, at 156.
[xix] Advocates must be careful not to go too far with adjectives. E.g., Markowitz, 608 F.2d at 704 (stating that describing “the trial court’s findings [as] ‘astonishing,’ and ‘extraordinary,’ or describing an opponent’s position as ‘ludicrous’ is not acceptable”).
[xx] Shepherd and Cherrick, supra note x, at 161.
[xxi] Id. at 163.
[xxii] Star Trek VI: The Undiscovered Country, Directed by Nicholas Meyer, Paramount Pictures, 1991.