Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Thursday, October 25, 2018

Thinking Thursdays: Understanding the Value of Voices Briefs in Appellate Practice

Margaret Hannon, guest blogger, Clinical Assistant Professor of Law, University of Michigan Law School

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Supreme Court decisions on deeply personal constitutional issues affect far more than the parties themselves. For example, consider the far-reaching effects of the Court’s decision on marriage equality in Obergefell v. Hodges, or on reproductive rights in Whole Woman’s Health v. Hellerstedt. Voices briefs—a form of amicus brief—give non-parties an opportunity to be heard by telling the stories of individuals who are strangers to the case but “whose lives will be profoundly shaped by the Court’s decisions.”

Amicus filings have increased by “an astounding 800%” in the last fifty years. And the filing of voices briefs has also dramatically increased, especially over the last three years. In Professor Linda Edwards’s article, Telling Stories in the Supreme Court: Voices Briefs and the Role of Democracy in Constitutional Deliberation, she considers the legitimacy and value of voices briefs and concludes that “there is little to lose and much to gain when amicus filers tell their stories.”

To date, voices briefs have been used almost exclusively in abortion rights and marriage equality cases. In these cases, “(1) the outcome will have a direct personal impact on the intimate lives of those affected; and (2) the storytellers’ experience is likely outside the Justices’ experience.” Professor Edwards imagines other types of cases with similar characteristics in which advocates might use nonparty stories to help the Court understand the experiences of others. For example, voices briefs could be useful in cases involving immigration, capital defendants, convicted felons, police shootings, and issues of race, class, or power disparity.

Professor Edwards explains that voices briefs serve at least three important roles. First, they allow nonparties who will be intimately affected by the Court’s decision an opportunity to be heard. Second, even if voices briefs don’t succeed in changing the outcome of the case, they may succeed in encouraging the Court to write an opinion that both recognizes and respects opposing views. And, third, voices briefs may encourage the Court to write opinions that model “better public discourse in today’s polarized public square.” As a result, the Court’s opinions may “provide a modicum of healing because readers who lose at least will feel heard, and readers who win may come away with a greater understanding of those on the other side of the issue.”

Professor Edwards analyzes the persuasive potential of voices briefs using cognitive science research focusing on “schemas.” Schemas are “preexisting cognitive patterns providing interpretive frameworks through which we perceive and judge the world.” The perceptions that result from these schemas seem to be natural and objectively true,” as “[t]he schema both highlights information that seems consistent with the schema, and hides inconsistent information.” So, the question is not whether Justices “see the situation through a lens, but which lens focuses [their] view.” And because schemas are unconscious, Justices may “remain unconsciously captive to a set of unexamined assumptions based on preexisting narrative schema.”

Voices briefs seek to challenge the Justices’ preexisting cultural narratives by highlighting voices and stories that don’t fit neatly into their schemas. In our increasingly polarized country, the human tendency to “associate primarily with and listen primarily to those we perceive to be like us” has become amplified. Justices are not immune from this tendency. Indeed, as Professor Edwards notes, Justices have always relied on extra-judicial factual sources and their own preexisting cultural knowledge and personal experiences to inform their decision-making.

Voices briefs thus serve an important role—they help counteract the Justices’ preexisting cultural narratives by exposing them to diverse perspectives that “help to fill the inevitable gap between a Justice’s personal experience and the realities of other lives and perspectives.” Studies have shown that anecdotal messages like the ones communicated in voices briefs may actually be more effective at countering negative preexisting bias than the logical arguments in merits briefs. Professor Edwards concludes that, instead of adding bias to a neutral process, “voices briefs may be the only way to counter the preexisting values bias that accompanies human deliberation.”

Professor Edwards discusses concerns about reliability, relevance, and the risk that non-party stories will be used impermissibly as adjudicative facts, rather than as permissible legislative facts. Professor Edwards concludes that “preserving a role for voices briefs is preferable to limiting their use in ways that ignore modern cognitive science and ancient rhetorical principles, that silence the voices of the governed, or that secretly smuggle in the adoption of a limiting jurisprudential view.”

I encourage appellate practitioners to read Professor Edwards’s article and to think about ways in which you might incorporate voices briefs into your appellate practice when faced with deeply personal constitutional issues that may be out of the realm of the Justices’ own personal experiences.

Special thanks to Alison Doyle for her help with this blog post.

October 25, 2018 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Legal Writing, Rhetoric, Sports, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Thursday, October 11, 2018

Thinking Thursdays: Speak onto the Page

Abigail Patthoff, guest blogger, Professor of Legal Writing, Chapman University Fowler School of Law

Thinking Thursdays: Speak onto the Page

The ideal advocate is both a skilled writer and a skilled speaker. Regardless of practice area, the law is a profession of words, and lawyers must be able to effectively communicate those words whether called upon to do so in a brief, in a contract, at oral argument, or when counseling a client. Yet, many lawyers experience a certain lopsidedness in their communication skills. Some of us are more confident writers than we are speakers (this blog author included!). Others are at our most articulate when speaking rather than writing.

Professor Peter Elbow, a Professor of English Emeritus at the University of Massachusetts Amherst, has written a book called Vernacular Eloquence: What Speech Can Bring to Writing that will appeal to lawyers of both stripes. Professor Elbow’s book sets out to be both theoretical and practical. Harnessing his frustrations about the “snobbery” of the culture of “correct writing” that he posits stifles and excludes many demographics of potentially good writers, Professor Elbow states that the theoretical goal of his book is to prove that “everyone with a native language has what it takes to write well.” Along those lines, the central argument of his book is that “we can enlist the language activity that most people find easiest, speaking, for the language activity most people find hardest, writing.”  

In addition to supporting his theoretical claim by marshaling a breadth of scholarship on writing and literacy, Professor Elbow offers practical suggestions for readers looking to improve their writing. The book suggests two major concrete ways to enlist speech for writing: (1) “talking onto the page” at the early stages of writing and (2) reading aloud to revise at the late stages.

Legal writing has long been criticized for being needlessly opaque. Typical speech, however, is rarely so incoherent. Most writing teachers, when faced with a confusing passage in a student work, will ask, “What did you mean here?” Usually, the student can speak a much clearer explanation of the passage than the passage itself. Professor Elbow says of this paradox, “the incoherence that comes from nonplanning is minor compared to the incoherence that comes from careful planning – unless it’s quite skilled.” In other words, while unplanned conversational speech may contain false starts, hesitations, and digressions, those aspects of speech do not interfere with the listener’s understanding nearly as much as certain aspects of planned typical writing can interfere. 

Professor Elbow, however, is careful to qualify his practical advice. He recognizes that professional writing quires a final draft in “correct English.” But he proposes that until that final draft, writers should “speak onto the page” and ignore internal voices that nag and criticize when that speech doesn’t produce polished results.

In the end, as one reviewer noted, “[Professor] Elbow is his own best argument for speaking onto the page: His voice is both authoritative and affable, conversational and professorial.” Lawyers looking to silence their inner critics would benefit from “listening” to Professor Elbow’s book.  

October 11, 2018 in Appellate Advocacy, Books, Legal Writing, Rhetoric | Permalink | Comments (0)

Thursday, August 16, 2018

Thinking Thursdays: Building a Dialogue Between Scholars and Practitioners

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

This is my last post for at least a long while—I will be on sabbatical this semester. What does someone invested in the field of legal writing do for sabbatical? She works to build the discipline. In my case, it’s researching and writing a topic that I hope will be of interest to members of the practicing bar as well as other scholars in the field.

Legal writing is a misnamed field. Scholars and teachers focus less on the mechanics of writing than they do on rhetorical analysis, and the nature of communication as part of client representation. A modern legal writing professor cares less about the sections of a memo than she does about the science of persuasion and the implications for legal advocacy. In this pursuit, the scholar connects with the practitioner. Many, many articles are written for a practitioner audience. I have had the joy of talking about several in this blog, and the bloggers who are taking over after this will be doing the same.

At a recent national conference, a group of legal writing “discipline-builders” sat around and talked about the landscape and trajectory of scholarship. We created a word cloud to capture the dialogue already out there—most of it created in the last twenty years. Here’s what it looks like:

DBWG#3 Wordle shown at 2018 biennial conferenceAs you can see, the conversations is rich, and varied. It's not your Mom's legal writing course anymore. Rather, the dialogue is dynamic and deep. This is an exciting time for scholarship in the discipline. I hope that you will join the conversation. And, thank you for reading these blogs.

August 16, 2018 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (1)

Thursday, August 2, 2018

Thinking Thursdays: Story Believability

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

Dr. J. Christopher Rideout, at Seattle School of Law wants lawyers to appreciate the elements of narrative plausibility (colloquially: story believability). The believability quotient is affected by whether the proffered story’s structure bears up in its consistency and completeness, and whether the story's substance jibes with the audience's experiences and lessons learned from those experiences. In his Journal of Legal Writing article Storytelling, Narrative Rationality, and Legal Persuasion, Rideout explains that his understanding of what persuades in law has shifted from one grounded primarily in rhetorical models of persuasion to now include narrative models as well.

To be persuasive, a narrative must possess narrative probability and narrative fidelity. Narrative probability is formalistic, in that it is structural. It involves two elements: coherence and correspondence. Narrative fidelity, in contrast, is substantive, focusing on the content. The bulk of rhetorician’s work on the persuasive structure of narratives has focused on the structural features. The way in which a story is told influences its credibility. “regardless of the actual truth status of the story.”[1]

Narrative coherence refers to the way the parts of the story fits together. The story structure should have a cause and effect flow. Having that cause and effect flow makes a story feel feasible—thus, the story that is presented most coherently will be the story that feels the most probable. To be coherent, a story must also be complete—that it contains all of the expected parts of a story. While the audience may be able to fill in some of the elements with inferences, a story that is too incomplete will appear to have logical gaps.

Narrative correspondence. the second formal (structural) requirement, lines up what the audience believes typically happens in the world. As story consumers we are always comparing the story being told with how we have experienced our world’s physical properties or within the audience’s mental storehouse of social knowledge. A story that contradicts the audience’s understandings of how things work will lack plausibility. While the story need not conform precisely to the most-common-flow in a given situation, it must be congruent to how humans react in given situations.

Dr. Rideout spends the second half of the article working through his suggestion that when competing legal narratives have equally compelling story probability, the substantive concept of narrative fidelity may tip the persuasion scales. Narrative fidelity may feel like narrative correspondence but is not structural in nature. The story must present good reasons for belief or action. It must fit with the social norms of the setting and moment in time. Fidelity goes beyond formal inferences to include what one rhetorician terms “communal validity.”[2] The story should have a “tug” to it because it appeals to our lived experiences and the values derived therefrom. Stories that win, do so for the logical construct but also for the substantive fit.   

 

[1] W. Lance Bennett & Martha S. Feldman, Reconstructing Reality in the Courtroom: Justice and Judgement in American Culture, 89 (Rutgers Univ. Press 1981).

[2] Robert Burns, A Theory of the Trial, 217 (Princeton Univ. Press 1999).

August 2, 2018 in Appellate Advocacy, Appellate Justice, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric | Permalink | Comments (0)

Thursday, July 19, 2018

Thinking Thursdays: The hero of hyphens

 

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

******************

Dr. Joan Magat, a law professor at Duke, wants you to know that hyphens matter, and they are too often underused. For years she has tried to convince the editors at Legal Communication & Rhetoric: JALWD that the phrase should be “legal-writing document” rather than “legal writing document.” And that lawyers who work with clients who have been charged with crimes are “criminal-defense attorneys,” rather than “criminal defense attorneys.” The latter isn’t distinguishable from someone trying to describe one of those specialists who themself was convicted of a crime. That lawyer would be a “criminal defense attorney.” See the problem?  Although she often finds herself on the losing side of these battles, Joan Magat isn’t wrong.

Her 2014 article, Hawing Hyphens in Compound Modifiers explains as it proves her point. Although she thanked and dedicated the article to her fellow-editor colleagues, its brevity and clarity offers an argument for all lawyers.

The base rule is easy to remember: compound adjectival-modifiers preceding a noun should be hyphenated. It easy to apply it consistently. Exception exist for phrases in italics, quotes, and proper nouns.  Yet, to Professor Magat’s woe, too often writers omit the hyphen, mimicking some of the familiar-but-unhyphenated phrases like “high school student” or “sales tax increase.” She rejects the entries in The New York Times Manual on Style and U.S. Government Printing Office’s Manual of Style, both of which advise against hyphens when the meaning is clear without them. It is up to the writer to determine what might be clear or unclear to the reader. The MLA Style Manual, in contrast, takes the opposite approach and instead requires hyphens to prevent a misreading. Only commonly unhyphenated phrases are excepted. There is much less guesswork involved.

Dr. Magat parses “pointless” from “helpful,” and shrugs off the critique that unexpected hyphens will distract readers. She pushes back, saying that hyphens are unlike scare quotes, exclamation points, or em-dashes used to excess. Rather, the hyphen smooths the way for readers because at times it can become difficult to tell what’s the noun and what’s the modifier. Think about the phrase “common law practice” for a moment. What is that? It could be one of two things. A hyphen could clear it up.

The article ends with a lovely appendix, providing advice about hyphenating compound modifiers. For that alone, the article is worth the thirty-second download time.

July 19, 2018 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric | Permalink | Comments (0)

Thursday, July 5, 2018

Thinking Thursdays: Consider your reader's working-memory limits

Ruth Anne Robbins, Distinguished Clinical Professor, Rutgers Law School

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Professor Andrew Carter has used a juggling metaphor to caution his students about exceeding a reader’s working-memory limitations. A sentence and paragraph need to stay within the boundaries of what a reader can competently hold in her working memory if the writer wants that reader to thoroughly comprehend and maintain the writer’s ideas. His article on the topic provides lawyers with useful information why our writing needs revisions for clarity and, yes, brevity.

Working memory is more than pass-through storage for new information. It is also where we interpret that information and use it to complete tasks. A simple arithmetic problem can be solved in our heads thanks to working memory, because it is there that we are both storing information (the numbers) and processing that information (performing the arithmetic function). At some point, Professor Carter points out, arithmetic becomes too difficult if there are too many numbers to store and manipulate. While we might be able to add numbers in the 100’s, we may need to turn to writing instruments to solve addition or subtraction problems that involve numbers in the thousands or ten-thousands.

Working memory has three different components to it: the first part stores the new information and the second part rehearses it on a loop to avoid forgetting. Third, the central executive component coordinates the information and controls the processing.  

Written text likewise engages working memory. But, a reader can process only a limited number of concepts in a single sentence or paragraph before overwhelming the limited capacity of working memory’s ability to store, rehearse, and process information. In the central executive aspect, the reader completes two tasks: discerning the text’s meaning and putting the text into context by mediating interactions with information housed in long-term memory. Thus, says Professor Carter, legal writers need to be cautious about how much information they ask the reader to juggle.

Professor Carter thus offers two sage pieces of advice. First, promote automatic processing. That means keeping the information simplified and free from disruptions. Long sentences with extraneous information, ornate syntax or obscure phrases all inhibit the automatic processing of information. So too will stumbling blocks in the way of grammatical, word-choice, or punctuation errors. Second, manage the cognitive load visually by chunking sentences and paragraphs so the interactivity of ideas is obvious rather than difficult to sus out. Causal ideas (if/then) in sentences and paragraphs should be clear to the reader via small-group chunks that are more automatically processed because they contain recognizable flow.

Naturally, legal readers carry a duty to read and digest the legal writing of an attorney. But, it bears repeating that a piece of writing’s efficacy will turn in part on its readability. Sometimes, keeping it simple is the strategic choice.

July 5, 2018 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts | Permalink | Comments (0)

Thursday, May 24, 2018

Thinking Thursdays: What's in a parenthetical?

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

Parentheticals. We love them, but we don’t always understand how to use them. An empirical study and article by Professor Michael Murray compiling the most-often use of these legal-writing creatures, demonstrates that most of the time they are used either incorrectly or inefficiently. Parentheticals are best employed to illustrate the governing rule of law by pointing to key facts from precedential narratives. Or, to embed a pithy quote that likewise illustrates a point.

Parentheticals are typically used when an illustration can be easily reduced to a comprehensible present-participle phrase. Experts also consider relevance in the equation. Sometimes the efficiencies suggest the use of a parenthetical to save space, i.e. when the precedential case isn’t important enough to elevate to an in-text explanation. A parenthetical can also be used to make a point about a rule being used in a series of precedential cases. That is, the parentheticals can then form visual support for synthesis such as, “the five cases that analyzed this point all interpreted the term broadly.” Five cites with parentheticals would then follow.

However, the substance inside parentheticals are sometimes visually difficult to locate, coming at the end of a citation sentence. If a case is more relevant to the client’s outcome, a better choice may be using one or two sentences of in-text explanation in lieu of the parenthetical. 

Michael Smith, at Wyoming College of Law is *the* expert on this topic, and his Advanced Legal Writing textbook’s Chapter 3 has been termed by 15 years of upper-division law students as “mandatory reading for any to-be lawyer or lawyer.”[1]  In the chapter he categorizes types of narration one might do in a parenthetical:

  • Illustrate for elucidation (using a parenthetical to illustrate how a rule operated in a precedential case).
  • Illustrate for elimination (using a parenthetical to eliminate possible misinterpretations of general rules).
  • Illustrate for affiliation (using a parenthetical to tie a rule to something in the everyday knowledge of the reader—a reference to a cultural icon, publication, or phenomenon).
  • Illustrate for accentuation (using a parenthetical to demonstrate how one word in the rule that might otherwise be overlooked is actually the key to solving ambiguities).

In my own textbook, written with Steve Johansen and with Professor Smith’s colleague Ken Chestek, we expand slightly on Professor Smith’s categories, by talking about one-word or one-phrase uses of parentheticals.[2] That is used in situations where a single word or phrase can conjure a story-scene for the reader and make the elucidation point. By way of quick example, “New Jersey considers the smallest of offensive touches ‘bodily injury’ in its criminal caselaw. [case cite] (slap); [case cite] (shove); [case cite] (kick); [case cite] (pinch).” We also talk about times when you can use quotations effectively in parentheticals: when it’s unique language that succinctly illustrates the rule. “wall of separation” is a good example of this.

Professor Smith also includes cautions for the use of parentheticals, and it is here that the numbers crunched by Professor Murray in his article make clear what is going wrong in the majority of appellate briefs. The number one and number two issues that Professor Smith sees in the drafting of parenthetical substance? Exactly what Professor Murray sees the most in his data. The error of placing the rule in the parenthetical. Or, the error of restating the rule in the parenthetical. That is, quoting the rule the attorney just synthesized into a client-oriented rule statement—or should have just synthesized that way. Restating the rule is simply a crutch for the writer—as if to say, “I really did read the case!” Restating the rule also ruins the cause-to-effect narrative flow of the rule illustration/rule explanation part of legal analysis.

Other common errors include being too overbroad in the factual illustration or being too specific. The right height to look down on the case and describe facts for parenthetical purposes is something like 30 feet from the ground. What can you see of a precedent’s story from that height? Not every blade of grass, but maybe a person’s front yard.

What is the takeaway? Parentheticals are an important tool in the lawyer’s kit, when used to promote persuasion and efficiency. They can, however, be cluttering and in some cases can add bulk if they are merely repetitive. Use them well—and use them wisely.

 

[1] You can preview part of Professor Smith’s Chapter 3 via Google Books. Search string: “Michael R. Smith” & parentheticals

[2] Do not pay the list price for a new book. The second edition is coming out this fall and will make this first edition a heck of a lot cheaper. 

May 24, 2018 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts | Permalink | Comments (2)

Thursday, May 10, 2018

Thinking Thursdays: Two-spacers, please stop being so selfish

 

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

The big news this week in field of law and typography[1] was a Washington Post story about a study that purports to settle the one versus two-space controversy that rages on appellate-minded websites, listservs, Facebook pages, and Twitter accounts. Even on this Appellate Advocacy Blog, editor Tessa Dysart chimed in earlier this week. For those of you who are two-space fanatics, I am going to do more than repeat what you may have already heard, i.e. that the study is deeply flawed (although I will quickly review it). Mostly, I am going to suggest that you reflect on your dry, compassionate-less soul and then put down your personal preferences to instead be a citizen of the world.

Business-764929_1280

But before I continue along these lines, I want to reiterate the scientific flaws in the study that have been ably and articulately pointed out by the best typographer and design expert in law—Matthew Butterick. I have had the pleasure of presenting with LWI Golden Pen recipient Matthew Butterick, and I know that when he writes something, he’s carefully researched and analyzed it first. Right away, Butterick calls attention to the central flaw of the study. It was done using the monospaced (typewriter-like) typeface of Courier, which is still required by the upper courts of New Jersey. To try and shake loose the New Jersey committee overseeing court rule changes, I researched the educational and cognitive science of readability and in 2004 published Painting with Print: Incorporating Concepts and Layout Design into the Text of Legal Writing Documents. The New Jersey officials were not persuaded but other courts were, and the article appeared by invitation on the 7th Circuit’s website for twelve years.

Because it is a monospaced typeface, two spaces must appear at the end of each sentence. Otherwise it is too difficult to determine whether there has actually been a break in the prose. But people don’t use typewriter fonts when they have the choice to use a proportionally spaced one such as the one you are reading right now. And there’s a reason for that. Courier, and typefaces like it, are 4.7% more difficult to read than proportionally spaced type. That equals a slowdown of fifteen words per minute, which Dr. Miles Tinker, the lead psychologist who studied the issue deemed “significant.” In his studies, readers consistently ranked proportionally spaced typefaces ahead of monospaced ones.[2] In other words, the new study is flawed both in using a typeface that people don’t normally choose, and in using a typeface that essentially requires two spaces to be able to discern the difference between the end of a sentence or not. The people conducting the study put the cart before the horse. That’s just poor science.

Now, I promised you a lambasting, and here it is. Two spaces after periods take up more space and for lawyers who find themselves up against a page limit, or who wonder why paper is so expensive, think about whether you can save yourself some space and money by switching over to one space instead.[3] You can also cut down on use of one of the most noxious and wasteful products we use: paper. In this country, paper is the largest source Eagle_Paper_and_Flouring_Mill_Kaukauna edited of municipal waste, and paper creation is the fourth worst industry for the environment. I wrote about this too, in a follow-up article, Conserving the Canvas: Reducing the Environmental Footprint of Legal Briefs by Re-imagining Court Rules and Document Design Strategies. Two spaces after periods actually contribute to the polluting of the environment. Yes, that extra space really does cost something to use.

And, if you are in the Seventh Circuit, you don’t even have a choice. The judges care a great deal about typography and instruct lawyers to use only one space after periods.

Al Gore thumbs up editedSo, there you have it, two-spacers. An inconvenient truth. There’s logos, pathos, and ethos to using only one space. Your preference harms the Earth, eats into your page limits, and costs you and your clients more money to use. The so-called study is junk science. Are there really any justifiable reasons left to continue your inconsiderate punctuation practices?

 

 

 

[1] Sure, that’s a thing, per Derek Kiernan-Johnson

[2] Miles A. Tinker, Legibility of Print 47–48 (Iowa State U. Press 1964) (synthesizing several decades of psychological research on typeface and readability).

[3] There are also other ways to save yourself some money and ecological ruin. When rules don’t require double-spacing: don’t. It’s harder to read anyway. And when courts allow you to use double-sided printing, do so.

May 10, 2018 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts, United States Supreme Court, Web/Tech, Weblogs | Permalink | Comments (0)

Thursday, March 29, 2018

Thinking Thursdays: Know your Logical Fallacies (Part 2)

In my last Thinking Thursday, I discussed some common logical fallacies that lawyers may fall prey to. Specifically, I focused on non-sequitur fallacies and insufficient evidence fallacies. Based on responses to my previous blog entry, I am going to review one category in this piece, and one more in the next entry.

Today I am focusing on shallow thinking fallacies. [1]

By way of quick review, logical fallacies happen when something goes wrong with the legal syllogism. Here is a proper albeit simplistic legal syllogism:

            Major premise:           The speed limit where defendant was arrested is 45 MPH.

             Minor Premise:          The working-perfectly radar gun clocked defendant at 63 MPH.

            Conclusion:                    Defendant was speeding

In shallow thinking fallacies, the advocate begins with a faulty major premise. The claimed “rule” is not a rule at all or is poorly articulated. Below are four shallow thinking fallacies.

Logic 2

1. You can spot a false dichotomy fallacy when you are presented only two choices to a complex issue that in fact offer multiple choices. For example, “If you don’t like chocolate, you must like vanilla.” Or, “you are either a Star Trek or a Star Wars person.”

Here’s how the syllogism goes wrong:

The False Dichotomy

Major Premise

Minor Premise

Conclusion

People can either like Star Wars or Star Trek, but cannot like both

You like Star Trek

You do not like Star Wars

False

True

Logical but incorrect

Some legal maxims are actually examples of this fallacy, including one of the trial lawyer’s favorites: falsus in uno, falsus in omnibus (if a witness lies about one thing, he is lying about everything).

2.Next is the bandwagon fallacy, or what I like to call “teenager logic,” It goes like this, “everybody agrees with this premise.” The obvious implication—so if everyone agrees, it must be correct. The internet is full of the faceless, nameless, “everyone says so” comments, sometimes supposedly supported by unscientific or undocumented polls. Lawyers might see this argument appear in the guise of an uncited “weight of authority” type of argument: “Most other jurisdictions do it this way!” Or, “This is a well-settled rule of law, dating back to antiquity.” [no or very few citations]. This one is a fallacy mostly because the major premise (“everybody agrees”) is not supported by sufficient authority. The premise might be true, but the skeptical reader will likely see this sort of argument as a cover-up for a weak or non-existent rule. A string citation can help overcome a bandwagon fallacy—one of the few times a string citation is actually useful: To show the weight of authority.

3.The third shallow thinking fallacy, the middle ground fallacy, is also known as the King Solomon Solution. This fallacy assumes that when two parties begin from distant or opposite positions, the position squarely in the middle of those two positions is the optimal solution. This kind of fallacy relies on the predilection of humans to rely on opening anchors for negotiation points--if the opening anchor is unrealistic, the rest of the negotiation can become fallacious. You can read more about this on the website of the Harvard Program on Negotiations.

Once again, this major premise contains fundamental flaws—in this case, the flaw in thinking that both positions are equally valid. They might not be. The problem, of course, is that the solution disregards the possibility that one position is objectively reasonable (or legally sound) and the other is grossly unreasonable (or legally unsound). While our legal system encourages and values compromise, when faced with this particular fallacy compromise leads to unreasonable or legally unsound results.

The Middle Ground Fallacy

Major Premise

Minor Premise

Conclusion

The best resolution of any valuation issue is the average of the two expert opinions

Plaintiff’s expert values the property at $500,000, but Defendant’s expert values it at $150,000

The property is worth $325,000

False

True

Logical but unsupported

4. Related to this, the fallacy of false balances also starts with a fundamental flaw in the major premise. Not all sides of an issue deserve equal weight in every situation. Sometimes one side of a debate has little or no weight at all, and therefore deserves little or no role in the debate. Journalists are often accused of allowing air time to fallacious debates even though one side is without merit.

In practice, this fallacy commonly appears in debates that involve proven science. The scientific method involves repeat experiments by different groups of scientists to verify stated conclusions. Once that has happened and conclusions have been accepted by a majority of scientists in the field, it is a logical fallacy to say that a dissenting view is equally balanced to the proved science. Allowing a debate about whether the moon revolves around the earth or vice versa would fall into this category of fallacies. As with the Fallacy of False Equivalency, lawyers can fall prey to this type of fallacy because we are taught to problem-solve through negotiation and compromise.

The False Balance Fallacy

Major Premise

Minor Premise

Conclusion

The Earth might be flat or round

I believe the Earth is flat

The Earth is flat

False

True (he “believes”)

Logical but False

Keep an eye out in your writing and in your colleagues’ to help correct any of these you spot in their analysis.

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

[1] Thank you to Professor Ken Chestek (Wyoming) and Professor Steve Johansen (Lewis & Clark) for these examples. They come from the upcoming second edition of our co-authored textbook, Your Client’s Story: Persuasive Legal Writing (2d ed. Wolters Kluwer, expected publication date of later this year).

March 29, 2018 in Appellate Advocacy, Appellate Practice, Arbitration, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Rhetoric | Permalink | Comments (0)

Thursday, March 15, 2018

Thinking Thursdays: Know your logical fallacies (Part 1)

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

Faulty reasoning undermines the substances of a legal argument as well as the credibility of the advocate. After a quick search of the online briefs available on Westlaw and Lexis, I can safely tell you that several thousand appellate briefs reference logical fallacies—typically as a precursor to a direct refutation of an opposing party’s argument. How many of us these days know our logical fallacies as well as we should?

Beyond calling out opposing counsel for these errors, the wise attorney also tests their own writing to see if they have relied on fallacious thinking. In most logical fallacies, something has gone wrong with the legal syllogism. In a sense, the major premise of a syllogism is a rule, while the minor premise is a fact. The conclusion flows from the application of the rule to the fact. Here is a simple example.[1]

            Major premise:          The speed limit where defendant was arrested is 45 MPH.

            Minor Premise:          The working-perfectly radar gun clocked defendant at 63 MPH.

            Conclusion:                Defendant was speeding

In most logical fallacies, some part of the syllogism fails. There are four major categories of logical fallacies in law. Today’s blog entry goes through the first two groups of common fallacies: the non-sequitur fallacies and the insufficient evidence fallacies. The next Thinking Thursday blog entry will discuss two other categories: shallow thinking and avoidance fallacies.  

Logic 21. Non-sequitur fallacies. In a non-sequitur, the major premise is applied incorrectly to the minor premise. You can recognize these when the conclusion does not logically flow from the premise

1.1  The correlation equals causation fallacy commonly appears with statistical analyses. The arguer claims that because A and B appear together A must have caused B. The argument that the MMR vaccine causes babies to develop autism is a classic example of this type of fallacy. This amusing site shows these fallacies taken to the extreme.

1.2  The post hoc fallacy is closely related to the correlation/causation fallacy. The arguer claims that because A occurrence is followed by B occurrence, A’s occurrence must have caused B to occur. For example, after I ate an apple, I won an award—ergo, eating the apple caused me to win the award. In law, this sometimes shows up this way: When Pat drinks, Pat becomes violent. Therefore, Pat’s violence is caused by alcohol. That is a logical fallacy. Alcohol may lower inhibitions but does not cause violence by itself. 

2. Insufficient evidence fallacies contain faulty minor premises—faulty because they are false or based in inadequate material. There are three major types of these.

2.1  The hasty generalization fallacy happens when lawyers draw big and general conclusions from too small a sample size or from unrelated evidence. “Climate change has been solved because this winter New Jersey saw frigid temperatures in late December and early January, and because it saw two nor’easter storms in March.” In that example, the weather from one three-month period is being used to argue that a decades-old phenomenon is over or never existed. To show this syllogistically:   

Major premise: Climate change is making things warmer

Minor premise (flawed): weather over a three-month period matters to climate change

Conclusion (faulty): Climate change is over or solved.

2.2  The anecdotal evidence fallacy is related to the hasty generalization fallacy. The anecdotal evidence fallacy occurs when there is simply inadequate evidence to support the minor premise.

Major premise:  Some cities offer Segway tours of tourist areas.

Minor premise (flawed): I have never seen people on a Segway tour of Philadelphia.

Conclusion (faulty): Philadelphia does not have Segway tours.

2.3  Finally, shallow legal research can lead to the Texas sharpshooter fallacy. As a classic example, a person shoots an arrow at a barn wall, and then draws a bullseye around the arrow in the wall. That’s a logical fallacy and happens in the minor premise—i.e. “this is a target with a bullseye.” A Texas sharpshooter fallacy happens when someone builds legal analysis and argumentation around incomplete legal research. Think of this fallacy as related to a confirmation bias—when the legal researcher stops researching when they find a result that demonstrates the governing rule that they want for their client, versus what the rule might actually be.

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It is easy enough these days to practice spotting logical fallacies simply by watching television. Many advertisements use fallacious reasoning in the marketing. Politicians will sometimes fall into the logical fallacy trap as well—watching the news for a week or two should net you a few examples. But, most importantly, review your own advocacy for these common errors.

] Thank you to Professor Ken Chestek (Wyoming) and Professor Steve Johansen (Lewis & Clark) for these examples. They come from the upcoming second edition of our co-authored textbook, Your Client’s Story: Persuasive Legal Writing (2d ed. Wolters Kluwer, expected publication date of later this year).

March 15, 2018 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Oral Argument, Rhetoric, State Appeals Courts | Permalink | Comments (1)

Thursday, February 15, 2018

Thinking Thursday: Lincoln would have owned Twitter

Presidents’ Weekend is upon us. Ten score and nine years ago, one of our most eloquent American writers was born. Per Professor Julie Oseid, it’s hard to pin down President Lincoln’s prowess to just one attribute. He was adept at many skills, “including alliteration, rhyme, contrast, balance, and metaphor.” (From her new book, Communicators-in-Chief) In her chapter on Lincoln, however, Oseid focuses on his ability to express a great deal in an economy of words. He developed that style during his 25 years as a trial attorney riding circuit. Collecting his legal writing became a quest for historians, and as a result Lincoln is now the most documented lawyer that we may ever have. You can see some of the work of The Lincoln Legal Papers project online. Oseid summarizes Lincoln’s strategy as not to waste arguments or words, but to use “just the necessary number of those words for essential matters.”

So many of our presidents are known for their rhetorical style that Oseid is able to build a body of work about the takeaways that we, as legal writers, can learn from our bygone leaders. Essays have appeared in Volumes 6, 7, 8, 9, and 10 of Legal Communication & Rhetoric: JALWD. Her new book brings together the rhetorical lessons from these five presidents and does so in a way that is very readable in the gestalt.

Lincoln with pen and paper

Lincoln worked hard for his brevity, pondering and editing mercilessly. He was driven by a need for universal comprehension—something every trial lawyer learns to do. His famous second inaugural address was delivered in six minutes. In 701 words he developed a timeless message of reconciliation—and 505 of the words he used were only one syllable long. His notes of his speech showed emphasis on five words, all verbs.

I asked Professor Oseid, and she agreed that Lincoln would have used Twitter masterfully and eloquently. It is interesting to pause for a few minutes and wonder how he would have used the medium. From what we know of his other writings, I strongly believe that he would have lifted it up, and us up in the process. Lincoln keenly understood that intelligent and powerful communications do not depend on vocabulary, but on conveying a theme with precision and organization.

As I celebrate my favorite presidents this weekend, I will be thinking about those legal writing lessons I can learn from them.

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

February 15, 2018 in Appellate Advocacy, Appellate Practice, Books, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument, Rhetoric, State Appeals Courts | Permalink | Comments (0)

Thursday, February 1, 2018

Thinking Thursday: St Brigid's Day and our writing process

Today is St. Brigid’s Day, celebrating propagation and creativity (primarily of women, but let’s interpret this broadly). As professional writers whose jobs entail creativity in problem-solving, it is a good day to stop and audit our own methods of propagating our acts of creativity, namely those of writing. The more we understand how we work as writers, the better we will write.

Professor Pam Jenoff—a Rutgers colleague as well as a New York Times Bestseller author—offers practitioners a way to do this in her short and quite readable article in Legal Communication & Rhetoric’s volume 10, The Self-Assessed Writer. In the article she imports tried-and-true methods from fiction-writing, re-imagined to help the legal writer. To improve our writing and our willingness to write, Professor Jenoff recommends we take a little time to express our work styles, optimized environments, and preferred tasks. Her suggestions for doing this exercise are simple to digest and complete. A few pages into the article she offers us a questionnaire that asks us to think about our most productive writing atmosphere. She also asks us to be honest about our task-preferences in the form of writing challenges and strengths.

I have taken this assessment and asked my students to do the same. In doing so, I have come to terms with the actual what and when of my writing successes, which are somewhat different than what I wish I could report are the what and when. I am great at the re-organizing and revising stages of the writing process and will happily work on that for hours on end with only a few breaks. A lengthy first draft will exhaust me, and to get through, I need to work on it in smaller chunks than I do a revising project. When I take mid-session breaks I know that I need to walk to process the information in my head, and I know that I need a notebook in hand or a voice recorder app at the ready, because I will forget every productive thought I had if I don't preserve it during the walk. I also know that I need two screens and therefore a desktop setup for the first-draft process. Research on one side, draft on the other. I need the same as I reorganize because I find it easier to cut and paste into a new document. If I am in later revising stages, a one-screen laptop works fine. This blog entry was written using the two-screen method. If I wrote it on my laptop you would be reading it as Thinking Saturday. 

The point Professor Jenoff makes isn’t that we can always have what we want in our writing milieu. Instead, it’s to understand what is optimal. The further we move from the optimal, the harder our writing process becomes. Conversely, our productivity and the quality of our product increases as we pay ourselves first with an optimized writing process.

Happy St. Brigid’s Day.

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

February 1, 2018 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts | Permalink | Comments (0)

Thursday, January 18, 2018

Thinking Thursdays: The idea of "opportune moments" in advocacy.

Appellate attorneys must choose not only the right arguments, but also the right moment for the argument. By that, I mean the right time in the world, and the right time in the brief. The idea of opportune moments draws upon a less-taught rhetorical concept, that of kairos.[1]

In Greek myth, two spirits represented different aspects of time: Chronos and Kairos. Chronos, often depicted as an aged man, was the spirit representing the sequential and linear passage of time. Kairos, the spirit of opportune moments—of possibilities—is shown as a young man, floating on air in a circuitous path. Francesco_Salviati_005-contrast-detail[2] His wings and the long hair growing only out of his face and not on the top or back of his head, symbolizes the need for people to seize him as he approaches, but not after he passed by. In his whirling travel patterns, Kairos—unlike Chronos—may come around again. Thus, the concept of kairos in rhetoric centers on the “opportune moment.” It is the difference between “being in the right time and place” versus the idea that people cannot go backwards in time.    

The “opportune moment” concept of kairos has been part of rhetoric since the time of Aristotle, who took the view that the moment in time in which an argument was delivered dictated the type of rhetorical devices that would be most effective. The sophists took a different view: Kairos is something to be manipulated by the presenter as part of adapting the audience’s interpretation of the current situation. Kairos assists in molding the persuasive message the speaker is communicating. Modern rhetoricians hold a middle view—that a presenter must be inventive and fluid because there can never be more than a contingent management of a present opportunity.

The Greek word kairos and its translation “opportune moment” embody two distinct concepts communicated through metaphors. The first concept, the derivation of the “right moment” half of the definition, is temporal. Greek mythology concentrated the spirit on the temporal. That is, the right time in the history of the world. For lawyers, that is important to know when making a policy argument. Is this the right moment in the trajectory of chronological time to make a particular policy argument. Will it persuade? Appellate attorneys who write civil rights and other impact-topic briefs will immediately understand what I am talking about. There is a right moment in history to make an argument. Some of the most important cases decided by the U.S. Supreme Court depended on the timing of the case—the kairos.  

In an article about creating kairos at the Supreme Court, and published in the Journal of Appellate Practice and Process, Professor Linda Berger has written about the idea of kairos and suggests that temporal metaphors are still useful, because they help explain why today’s dissent in an opinion may become tomorrow’s majority decision. In her analysis, she demonstrates that what may look like a missed or lost opportunity to persuade may still have an impact. A snagged thread in the fabric of the law, which, at an opportune later time, can be pulled to unravel the existing fabric of the legal sky when the opportune moment comes around again.  

Dreamstime now is the right moment teacupBut, the second half of the kairos definition—the opportunity—deals with the spatial. To seize the opportunity at the right time requires one to communicate in the right place and under the right circumstances. Rhetoricians commonly use visualizations of the penetrable openings needed for both the successful passage of the arrows of archery through loopholes in solid walls, and the productive shuttles of weaving through the warp yarns in fabric, as a way to describe the spatial aspect of kairos. Modern rhetoric takes these metaphors and elaborates, defining kairos as “a passing instant when an opening appears which must be driven through with force if success is to be achieved.”The idea is one of force and power.

For appellate attorneys, this represents the “where” an argument is placed in the internal whole of the document. The kairos of the legal writing. That depends, of course, on the overall narrative structure of the argument, the positions of emphasis in the beginnings and closings of sections and paragraphs, and the lasting imagery the writer wants the readers to walk away remembering. It is, as Professor Scott Fraley has noted in his Primer on Essential Classical Rhetoric for Practicing Attorneys, the idea that the writer understands the right moments “at which particular facts or arguments are inserted into the argument or presentation of the case.” He calls kairos, “the art of knowing when . . . to make the winning argument.” In other words, the strategic advocate spends time thinking about the persuasion of time. 

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[1] Some of this entry relies on language I wrote in an article on a different topic. Ruth Anne Robbins, Three 3Ls, Kairos, and the Civil Right to Counsel in Domestic Violence Cases, 2015 Mich. L. Rev. 1359 (2015). For the background on Kairos and kairos, I rely on these works: Carolyn R. Miller, Kairos in the Rhetoric of Science, in A Rhetoric of Doing: Essays on Written Discourse in Honor of James L. Kinneavy 310, 312–13 (Stephen P. Witte, Neil Nakadate & Roger D. Cherry eds., 1992); James Kinneavy & Catherine Eskin, Kairos in Aristotle’s Rhetoric, 17 Written Comm. 432, 436–38 (2000); and Eric Charles White, Kaironomia: on the Will-to-Invent 13–15 (1987).

[2] Francesco Salviati, Kairos (1552-1554) (fresco); picture courtesy of Wikimedia Commons, https://commons.wikimedia.org/wiki/File%3AFrancesco_Salviati_005-contrast-detail.jpg

January 18, 2018 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument, Rhetoric, State Appeals Courts | Permalink | Comments (0)

Monday, January 15, 2018

Aristotle, Classical Rhetoric, and Dr. Martin Luther King, Jr.

MLK_in_Birmingham_Jail

Today our country remembers Dr. Martin Luther King, Jr. In fact, this year the observed holiday falls on Dr. King's actual birthday--January 15. While there is much to reflect on from Dr. King's life and career, I wanted to focus today on how his writings--specifically his Letter from a Birmingham Jail--can be used to teach persuasive argument.  

Dr. King wrote the letter in April 1963, after being arrested for participating in a march without a permit (and in violation of a court order against such demonstrations).  The letter was written in response to a statement published in a Birmingham newspaper by eight Alabama Clergymen criticizing the march.  The interdenominational group of clergy urged the African-American community in Birmingham to "withdraw support form these demonstrations" and pursue their cause "in the courts and in negotiations among local leaders." 

The Letter, which was written in four days, serves as a strong justification for defying unjust laws.  It also vividly demonstrates Aristotle's three modes of persuasion: (1) logos (appeal to logic); (2) ethos (appeal to character); and (3) pathos (appeal to emotion). Interesting, as Professor Emertius Mark DeForrest has noted, citing one of Dr. King's associates, Dr. King "had a comprehensive mastery of the forms of classical rhetoric, obtained not directly from the classical Greek and Roman sources, but from the religious patrimony of scripture and pulpit."  Still, as Professor DeForrest demonstrates in his article, Dr. King's Letter "can function effectively as an introduction to classical methods of persuasion because the strategies
and tactics of his presentation exemplify those rhetorical tools."  

For example, Dr. King demonstrates logos early in the Letter when "he explains to his readers why it is he came to Alabama to engage in non-violent direct action."  As Professor DeForrest explains,

The clergy claimed that the situation in Birmingham was one of “new hope,” and that such “extreme measures” as non-violent protests were unnecessary. King effectively
thwarts that argument by noting that Birmingham’s civil rights situation was far from hopeful—the city was, in his words, “probably the most thoroughly segregated city in the United States.” King then focuses on the recurring and insistent call by the clergymen for local negotiations to solve the racial difficulties in Birmingham.
After reciting a litany of abuses heaped upon the African-American community in Birmingham, King notes that African-American leaders had sought to negotiate with the leadership of the city, but to no avail. He goes on to recount that efforts to talk to members of the business community also were fruitless. In the end, King states, “[W]e had no alternative except to prepare for direct action. . . .” Yet, he explains, the purpose of direct action was not to prevent dialogue, but to create the conditions necessary for real negotiation to occur.

 Dr. King also uses ethos in the Letter, especially in explaining the need for civil disobedience.  Professor DeForrest writes,

King addresses the issue head on and notes that the clergymen had “express[ed] a great deal of anxiety over our willingness to break laws.” This concern went to the heart of King’s character and credibility. After all, could it not be inferred from his selective embrace of the law—supporting the enforcement of Brown v. Board of Education while refusing to follow the ordinances of Birmingham, Alabama—that he was a dangerous hypocrite, a radical who would speak out of both sides of his mouth in order to get what he wanted? King does not try to minimize or explain away the clergymen’s concern, but acknowledges that it was “legitimate.” It appeared “paradoxical,” he writes, to insist
on obedience to Brown v. Board of Education while at the same time advocating the non-violent violation of laws pertaining to marches and other forms of demonstration. King then launches into a sustained explanation of the moral basis of the Civil Rights Movement’s use of civil disobedience, pointing out that the paradox
was resolved once one understood the distinction between just laws, which should be obeyed, and unjust laws, which “one has a moral responsibility to disobey. . . .”

Finally, with respect to pathos, Professor DeForrest notes that Dr. King uses it in the Letter to support his logical and factual arguments.  Professor DeForrest specifically points to "one of the most moving passages in the letter" where Dr. King uses history and vivid examples of segregation and it's impact of segregation on the African-American community to challenge the clergymen's call to just wait.

In addition to discussing Dr. King's use of classical rhetoric, Professor DeForrest points out other ways in which Dr. King uses persuasive tactics to convince his audience--including Dr. King's use of authorities and "evocative, plain language."  For those looking for a new teaching tool this spring, Dr. King's Letter and Professor DeForrest's article provide an excellent framework.

January 15, 2018 in Appellate Advocacy, Rhetoric | Permalink | Comments (0)

Thursday, January 4, 2018

Thinking Thursdays: New Science on the Ability of Facts to Debunk Myths

 

Extra! Extra! In a Post-Facts World, Facts Still Matter!

Yesterday, Slate published an important cover story written by Daniel Engber, LOL, Something Matters, in which he assures readers that facts still have power. In it, he outlines and reviews some of the scientific studies, old and new, that have analyzed the effects of presenting facts to counter false beliefs. There’s good news in the most recent studies. Facts do have an effect on debunking false information or myths.

The new science supporting the importance of factual persuasion, ironically has its own factual persuading to do. People who know a little bit about the science of managing adverse material typically rely on a small sample-size study conducted by Brendan Nyhan and Jason Reifler, When Corrections Fail: The Persistence of Political Misperceptions.[1] Two years prior to its actualy publication, the study was written up in mass-consumption media as part of the 2008 election fever. The stories tended to make dire predictions that fact-checking news stories would end up rallying people to become more firmly entrenched in their beliefs in the falsehoods. This phenomenon was termed the “backfire” or “boomerang” effect. Oxford Dictionaries selected “post-facts” as the 2016 word of the year, based in part on these studies.

Graduate students at different universities became interested in the Nyhan-Riefler paper, and attempted to replicate them, to no avail. The new studies were 103 times larger than the studies done by Nyhan and Riefler. One set of graduate students used over 10,000 test-subjects and another graduate student group used almost 4,000. The data tended to show the opposite: none of the conditions resulted in any evidence that people adhered to their views when presented with facts that showed the opposite was true. Rather, the studies showed that the test-subjects were more likely to adapt their views to better fit the facts.  

Rather than challenge the new science, essentially debunking theirs, the original scientists, Nyhan and Riefler collaborated with one of the other sets of researchers to conduct new studies. The foursome posted a 60-page article in the summer of 2017, The Effect of Information on Factual Beliefs and Candidate Favorability, [2]  concluding that people are willing to update factual beliefs when presented with “counter-attitudinal informaton.” However, they further concluded that updated factual beliefs might have only minimal effects on attitudes towards a political candidate. The very creators of the backfire/boomerang effect have questioned—some might say debunked—their own previous work. And the Slate article has set out to help publicize the new studies. Facts still matter.

So, what does the appellate lawyer take from all of this? Well, two things. First: the new studies give credence to the idea that the better way to manage adverse material is to disclose and refute it, rather than ignore it. Kathy Stanchi, a Professor of Law at Temple University has advised this in her germinal article, Playing With Fire: The Science of Confronting Adverse Material in Legal Advocacy.[3]  As cited in Professor Stanchi’s article, other scientists have suggested ways to confront adverse material—to immediately refute it when mentioned.[4]

Second, the wise appellate lawyer, turns to one of the resources that Daniel Engber cited in the Slate article, John Cook and Stephan Lewandowsky, The Debunking Handbook, available for free download (7 pages). The handbook offers an “Anatomy of an effective debunking” on page 6. The last of the advisory elements is to present information graphically, so I will end this blog post with a chart.

Elements, per handbook

Explanation in handbook

Blog Analysis

Core facts

Refute by emphasizing the key facts. This will create a gap in the knowledge of the audience—a hole where the falsities used to take up space

This isn’t said in the text of the handbook, but the examples do mention a need for the key facts to present as a cohesive, alternative narrative.

Explicit warnings

Before mentioning the myth or falsehood, provide textual or visual cues that upcoming information is false

In legal writing-ese, this advice suggests that the writer mention the myth only after presenting the true facts. That gives the truth the position of emphasis in a subsection or paragraph.

Alternative Explanation

Any gaps left by the debunking needs to be filled. Achieve this by providing an alternative causal explanation for why the myth is wrong (and perhaps why the falsities spread).

This isn’t said in the text of the handbook, but the examples do mention a need for alternative explanation to  present as a cohesive, alternative narrative. In other words, story persuades. Stories are organizational scaffolds that present information as cause à effect

Graphics

Core facts should be displayed graphically, if possible.

For lawyers, the legal reasoning may also be presented with infographics. But, not all infographics are useful infographics--some are merely decorative and others might be off-point. The writer must always balance the usefulness with the impact on persuasion. For more on this, see Steve Johansen and Ruth Anne Robbins, Art-icuating the Analysis: Systemizing the Decision to Use Visuals as Legal Reasoning, 20 Legal Writing 57 (2015).

[1] 32 Political Behavior, 303 (2010). The study used 130 undergraduate students at a Catholic university. These students were split among four different modules. Id. at 312.

[2] Brendan Nyhan, Ethan Porter, Jason Reifler, and Thomas Wood, Taking Corrections Literally but not Seriously? The Effect of Information on Factual Beliefs and Candidate Favorability (June 29, 2017), available on SSRN at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2995128 (last accessed January 3, 2018).

[3] 60 Rutgers L. Rev. 381 (2008).  

[4] Id. at 390–92.

 

January 4, 2018 in Appellate Advocacy, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts | Permalink | Comments (0)

Thursday, December 7, 2017

Thinking Thursdays: Negativity, Empiricism, and Legal Advocacy

Negativity landscape

Professor Ken Chestek at the University of Wyoming College of Law has created two different empirical studies about persuasion and narrative, using judges as the test subject. For that rarity alone, his scholarship stands out as important for lawyers to read. In his most recent article, Fear and Loathing in Persuasive Writing,[1] he asked the question of whether the “negativity bias,” known to psychologists, works with judges as well as it works with voters. The answer is the standard one you would expect from a lawyer, “it depends.” That the answer isn’t a definitive “no way,” should give us pause as advocates. Our intuitive answer that we naturally graviate towards the positive turns out to be the opposite of how our brains work. Rather, as Chestek writes, “we have a natural inclination to attend to and process negative stimuli.” Scientists posit that we retain negative information longer because the brain processes it more thoroughly—perhaps as a necessary adaption in evolution to keeping ourselves alive. He reviews the science of negativity and implications for lawyers in greater detail in another recent article, Of Reptiles and Velcro: The brain’s “negativity bias” and Persuasion

In his eighteen-month empirical study with 163 judicial readers, Chestek used a series of nine appellate brief preliminary statements to test the power of positive versus negative themes in a simulated case file. Four were positive, four were negative, and one was neutral.[2] By themes, Chestek references George Lakoff’s formuation of “deep frames,” an idea Chestek wrote about in his other empirical study about judges and the persuasive power of story (You can read a snippet of George Lakoff’s framing concepts here).

Ultimately, Chestek’s concludes that the results don’t provide bright-line answers, but instead point towards complexity. Positive themes seem to focus the judges’ attention on the state of the governing law whereas negative themes focus their attention more on the nuances of the facts. He also found that negative themes work better for a David facing Goliath rather than vice versa.

 This phenomenon has significant implications for written legal advoacy, starting with theme selection. That strategy should factor in the strength of the legal position or the facts. Second, the negativity bias might lead an advocate to phrase policy arguments in terms of avoiding bad outcomes instead of promoting good outcomes, since the judge may process the negative statement more thoroughly. And, finally, the negativity bias suggests that it is critically important to understand the negative facts of your client’s case and the ways they can or cannot be managed.[3]   

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[1] Published as the lead article in Volume 14 of Legal Communication & Rhetoric: JAWLD

[2] For more on the persuasiveness of Preliminary Statements, see Steve Johansen’s article, Coming Attractions: An Essay on Movie Trailers and Preliminary Statements, and Maureen Johnson’s article, You Had Me at Hello: Examining the Impact of Powerful Introductory Emotional Hooks Set Forth in Appellate Briefs Filed in Recent Hotly Contested U.S. Supreme Court Decisions.

[3] Base photograph by Kenneth D. Chestek—photography is one of his hobbies.

 

December 7, 2017 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts | Permalink | Comments (0)

Thursday, October 26, 2017

Thinking Thursdays: Visual Impact Moments

What is the narrative climax in the Little Red Riding Hood fable? When the wolf eats Little Red. But what is the visual impact moment? The image you think about when you recall the story? That’s From 2006 AALS Clinic poster session
probably different. It’s either an image of a little girl in a red cape, walking through the woods or it’s the moment when Little Red first sees the wolf in Granny’s bed, wearing Granny’s nightclothes. The visual impact moment can be different from the story’s climax.

Jason Eyster writes about visual impact moments in one of my all-time favorite articles in the Applied Legal Storytelling canon. His article, The Lawyer as Artist, in Vol. 14 of the Journal of Legal Writing, explores the use of scene and setting as a persuasive tool for legal writers. This article is creative, and always fresh. It is one that I re-read and think about at least once or twice a year. The idea of the setting isn’t often discussed in the persuasion literature, but, as Eyster argues, can create lingering impressions. The legal writer who takes time during a description to linger on choice details will make the scene “pop” for the reader those visual images will provoke a natural, emotional response. The visual impact scene need not be the climax, but should connect to the case theme. If you can connect it to the theory of the case, all the better.

So, how do you do it? Eyster offers one idea: the obtuse object. That is something unexpected or incongruous with a scene that draws in the reader through a natural curiosity. In one of his examples, an asylum case, the legal writer zeroes in the description of his client, sitting in her former home and eating a pomegranate just before hearing a sinister knock on her door—one that results in her being dragged away by militia in her country. The simple mention of the pomegranate serves to draw the reader into the scene. It evokes the famous Persephone myth of a young woman dragged into hell while her mother tries to have her released. The scene is made all the more emotional for its layers of meaning. Pomegranate

Think about the scene in your client’s case that you hope the judicial panel will likewise remember when they put down the brief. Is it the scene you want? If it’s the same scene your opponent might choose, think of another one. If it is the scene you want, have you chosen some memorable detail to describe—an action, an object, a character, or the setting itself. Describe it with a name, sensory information, its function, its history, or a metaphor. Things like this put joy and art into the job of legal writing.

October 26, 2017 in Appellate Advocacy, Appellate Practice, Law School, Legal Writing, Moot Court, Rhetoric, State Appeals Courts | Permalink | Comments (0)

Thursday, September 28, 2017

Thinking Thursday: What's the (rhetorical) sitch?

Cartoon feminist-heroine, Kim Possible, knew that understanding the rhetorical situation was key to her work of saving the world. Likewise, it's incumbent upon appellate attorneys to contemplate the process of what it is we do as legal advocates—and why we do it. Understanding the nature of rhetorical situations involved in appellate advocacy make us better lawyers. 

As a problem-solver of already existing issues, Kim Possible is channeling Lloyd Bitzer, a rhetorician who wrote a short but germinal essay, The Rhetorical Situation. In that article, Professor Bitzer defined rhetorical discourse as an attempt to problem-solve through communication that has been tailored to the specific circumstances and multiple audiences who can work towards the response. Bitzer’s idea was challenged by Professor Richard E. Vatz, in his article, The Myth of the Rhetorical Situation, with the argument that the situation can be created and defined by the communication rather than vice versa. He takes the position that the writer or speaker’s selection of facts and arguments from the panoply of available material constructs the shape of the situation as perceived by the audience. That is, the speaker/writer has some control about what is or isn’t salient to the audience.

In the world of appellate advocacy, both Bitzer’s and Vatz’s ideas ring true and both are worth considering. The circumstances that form the requirement of our legal communication do exert the type of control on the legal writer’s choices that Bitzer imagines. An appeal is an exigency, and the appellate legal writer’s messaging must take into account the needs of the audience, the constraints of the controlling law, and consideration whether it is the appropriate timing for any policy arguments (i.e. whether this is an opportune moment for that type of argument). At the same time, the decision to take a specific course in a legal matter helps create and shape what will be pertinent. There is no exigency of an appellate brief, for example, until a party files a notice of appeal outlining the issues raised.

What’s the takeaway? Both Bitzer and Vatz have something to teach appellate lawyers. The two articles are easy reads at fifteen pages and eight pages respectively. While it is important to study persuasive techniques to use in an appellate brief—techniques that appeal to the multiple audiences and that suggest a response, lawyers should also remember that the context and form of the rhetorical situation is also at least somewhat in the control of the appellate lawyers.

In the meantime, I am delighted to have been selected to join this group of bloggers. Please: call me, tweet me, if you want to reach me. -Ruth Anne Robbins

September 28, 2017 in Appellate Advocacy, Legal Writing, Rhetoric | Permalink | Comments (0)

Monday, September 11, 2017

Guest Post: Dreamers or Illegal Aliens? Framing and Persuasion

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This is a guest post by UNLV Law Professor Linda Berger and Temple Law Professor Kathy Stanchi.

This week, Attorney General Jeff Sessions announced the end of Deferred Action for Childhood Arrivals (DACA). This announcement caused a public outcry, as well as a response from former President Obama, whose administration had spearheaded the program.

Sessions and Obama spoke of DACA in very different terms, no doubt trying to persuade those who were still undecided, but also trying to connect with those who already agreed with them. Their two short statements illustrate core principles of legal persuasion because their words created network of favorable connections in the minds (and hearts) of their audiences.

Sessions, for example, referred to the program as “DACA”, a flat, bureaucratic acronym. Is there anything drearier than an acronym? The word “DACA” sounds like something worth getting rid of – whatever it is. Moreover, using “DACA” allowed Sessions to characterize the program as borderline illegal -- “an open-ended circumvention of immigration laws” that allowed “800,000 mostly-adult illegal aliens” to remain in the U.S. In Sessions’ statement, it is easy to dismiss the DACA participants as “other” – as people breaking the law -- not like “us.”

Contrast “DACA” with the program’s popular name, the “Dreamers.” Whereas DACA sounds emotionally flat, “Dreamers” triggers one of the most evocative and compelling cultural stories we have, the American Dream. James Truslow Adams described the American Dream in the early 1930s as the idea that "life should be better and richer and fuller for everyone, with opportunity for each according to ability or achievement" regardless of social class or circumstances of birth.

Imagine how dissonant Sessions’ message would have been if he’d said the “Dreamers” were “mostly-adult illegal aliens.” Such a semantic and emotional flub might have damaged Sessions’ message even with those inclined to agree with him. No American wants to connect the “American Dream” with “illegal” behavior.

By contrast, Obama’s statement took the American Dream connection and ran with it. He called the Dreamers “young people who grew up in America -- kids who study in our schools, young adults who are starting careers, patriots who pledge allegiance to our flag.” Not “other” people but “kids” “Americans” and “patriots” just like “us” (or our kids). More than that, these young “Dreamers are Americans in their hearts, in their minds, in every single way but one: on paper.”

Like these political rhetoricians, lawyers and judges are effective in legal persuasion when they help their audiences make favorable connections. Those connections can be semantic (illegal versus patriot) or they can be emotional (we are all Dreamers). They can prime our biases (those people are illegal or my grandparents were immigrants). In the end, the way we talk about the “dreamers” provides a powerful example of persuasion -- of how to forge connections that allow us to influence others.

UNLV Law Professor Linda Berger and Temple Law Professor Kathy Stanchi are the authors of Legal Persuasion: A Rhetorical Approach to the Science (Routledge), a book that explores how legal persuasion results from making and breaking mental connections, using examples from law and politics.

September 11, 2017 in Current Affairs, Legal Writing, Rhetoric | Permalink | Comments (0)

Monday, July 10, 2017

The Chief's Advice to Young Graduates

Chief Justice John Roberts made headlines last week.  It wasn’t a hot-button 5-4 opinion at the end of the SCOTUS term that caught the media’s attention this year.  But, it was a piece of writing that the Washington Post called “[t]he best thing Chief Justice Roberts wrote this term.”  So, what was it?  Well, it was a graduation speech delivered to the graduating class at Cardigan Mountain School, where the Chief’s son Jack was graduating ninth grade.

It is hard to believe that the Chief’s son is graduating ninth grade.  I remember seeing him “dance” at the press conference in July 2005, when President Bush announced John Roberts’ nomination to the SCOTUS.  You can watch the video here.  Apparently, young Jack was impersonating Spiderman.

What makes this speech so great? It is certainly funny (see this line:  “You’ve been at a school with just boys. Most of you will be going to a school with girls. I have no advice for you.”). But that is not what makes the speech stand out.  What makes the speech so unique, and what has drawn attention, is the section of the speech where Chief Justice Roberts tells the students that he hopes that they will be “treated unfairly” and have “bad luck.” He says:

Now the commencement speakers will typically also wish you good luck and extend good wishes to you. I will not do that, and I’ll tell you why. From time to time in the years to come, I hope you will be treated unfairly, so that you will come to know the value of justice. I hope that you will suffer betrayal because that will teach you the importance of loyalty. Sorry to say, but I hope you will be lonely from time to time so that you don’t take friends for granted. I wish you bad luck, again, from time to time so that you will be conscious of the role of chance in life and understand that your success is not completely deserved and that the failure of others is not completely deserved either. And when you lose, as you will from time to time, I hope every now and then, your opponent will gloat over your failure. It is a way for you to understand the importance of sportsmanship. I hope you’ll be ignored so you know the importance of listening to others, and I hope you will have just enough pain to learn compassion. Whether I wish these things or not, they’re going to happen. And whether you benefit from them or not will depend upon your ability to see the message in your misfortunes.

Chief Justice Roberts does offer the students some advice that I think relates to appellate advocacy.  He reminds the students that, although they are “privileged,” they should not act like it.  Rather, when they get to their new schools, they should “walk up and introduce [themselves] to the person who is raking the leaves, shoveling the snow or emptying the trash. Learn their name and call them by their name during your time at the school.” He also told them to smile and say “hello” to people that they do not recognize when taking walks.  He said, “[t]he worst thing that will happen is that you will become known as the young man who smiles and says hello, and that is not a bad thing to start with.”

This exhortation to treat others with kindness is a lesson that many attorneys could stand to learn.  When I was clerking, there was a story told around the courthouse about some attorneys looking for a courtroom.  One of the judges, who was not in his robe, stopped to help them.  But, when he told them that he only knew the courtrooms by carpet color (which is how all the judges, clerks, and court staff referred to the courtrooms) and not number, the attorneys were quite rude to him.  He wasn’t on their panel, but I do believe that he spoke to the judges who were.  A little kindness to the clerk’s office, the marshals, the janitorial staff, and the unknown person offering help, goes a long way!

The Chief offers some other great advice, so I encourage you to read his full remarks here.

July 10, 2017 in Appellate Advocacy, Oral Argument, Rhetoric, United States Supreme Court | Permalink | Comments (0)