Abstract:

When zealously advocating a clients position, the lawyers ultimate goal is winning. To win, however, the lawyer must convince a judge or jury to accept the lawyers (and reject opposing counsels) position. The best type of advocate accomplishes this goal using various rhetorical techniques, attempting to manage other peoples perceptions of such things as the facts, the lawyers own theory of the case, the credibility of eyewitness testimony, the weaknesses of opposing counsels claims, and the praiseworthiness of the lawyers own client. By design, we have an adversary system.

But how does the lawyer successfully convince the fact finder that the lawyers (and not opposing counsels) position is aligned with justice? Success inevitably boils down to persuasive legal argumentation. If the lawyers ultimate goal is winning, the lawyer must master the art of persuasion. For the art of persuasion is intimately connected with the psychological process of perception. And perception is what convinces people whether to accept or reject the lawyers argument.

In this Comment, I propose an account of legal argumentation that explains the relationship between mental processes that psychologists label cognitive biases and legal arguments that philosophers label informal fallacies. Cognitive biases are errors in our thinking and reasoning, which alter our perceptions. Informal fallacies are verbal or written arguments containing material flaws, which enhance their persuasiveness. I also describe the process of persuasion at play when the lawyer uses legal arguments that contain informal (material) fallacies. By using legal arguments that contain informal fallacies, the lawyer can play upon the listeners inherent cognitive biases to persuade the listener to see things the same way the lawyer does. When lawyers use these rhetorical techniques whether before or during trial proceedings they induce in most listeners erroneous perceptions that can, and often do, powerfully alter their listeners beliefs.

My first general purpose is to explain what lawyers and judges can learn from psychologists and philosophers insights on legal argumentation. There is a connection between perception and persuasion namely, that cognitive biases (linked to perception) and informal fallacies (linked to persuasion) are merely two different labels used to describe faulty reasoning as it occurs in one of three phases in the reasoning process: (1) the arguers mental process in which a specific bias influences how she interprets her perceptions and how she is persuaded to believe something; (2) the arguers rhetorical process in which she uses a specific tool or argument to persuade the listener to perceive and believe as she believes; and (3) the listeners mental process in which a specific bias influences his perceptions of the arguers reasoning and persuades him to believe as she does.

My second general purpose is to promote a new framework for viewing the use of informal fallacies in legal argumentation. Lawyers use informal fallacies as a strategy of persuasion to induce cognitive biases in other peoples thinking, to effectively manage their perceptions, and to ultimately change their beliefs. While informal fallacies can be used deceptively and philosophers condemn and try to excise them from argumentation completely they can play an essential role in good legal argumentation and effective advocacy. Informal fallacies may help to persuade the listener to actually care about the outcome of a case and to see things the way the lawyer sees them. Similarly, while cognitive biases are generally viewed as a hindrance to the truth and psychologists catalogue and study their negative impact on eyewitness testimony they can play an essential role in good legal proceedings. Cognitive biases may help even the most simple-minded listener to perceive each lawyers version of the case and to determine which to believe. Thus, good legal arguments and proper judicial proceedings can still involve both types of error in reasoning.

The goal of persuasive legal writing seems obvious enough. We want the courtwhether at the trial or appellate levelto adopt our position. Nothing more, nothing less.

But this seemingly self-evident advice begs another, more critical question. If persuasiveness is the goal, how do we get there? What are the components of persuasive writing? What separates the amateurs from the pros?

Persuasiveness is not single virtue, but a function of many things coming together at once. The five steps that follow are a process, not a blueprint or a paint-by-numbers exercise. There is no "quick fix" when it comes to persuading a court.

You won't find too much about style or grammar on the list. It assumes that most already know the basics: write in the active voice, cut out the needless words, learn to write grammatically.

Important, critical skills. But once mastered, not enough.

Step #1 Get Organized

That enduring requirement of high school compositionthat is, to begin your writing projects with an outlineis still a good idea. An outline gives direction to your project from the start and makes the laborious process of writing the first draft that much easier.

The typical legal brief or memorandum has four parts: an introduction, factual background, argument, and conclusion. You should consider a longer introduction that provides a sort of "executive summary" that states at the outset why your client should win. The conclusion is normally a perfunctory close of only a sentence or two.

If you are responding to something your opponent has already written, it is often easiest to adopt your opponent's organizationthat is, respond to your opponent's arguments in the same order that he or she presented them.

For longer legal briefs and court memos, consider adding a table of contents at the front. It aids comprehension and shows you have confidence in your ability to organize.

Step #2 Maintain Your Credibility

The court will respond more favorably to your arguments if they think you are fair-minded and wise. The basic rules are easy. Present a cogent legal argument. Don't misstate the facts or the law. Be thorough in your research. Always cite-check your case citations.

Your credibility is also influenced by how seriously you take the arguments advanced by your opponent. Any legal brief or memo that fails to address every point made by the other side is inherently flawed. It's a rule that's often violated, especially when we're rushed.

What about concessions? It's often strategically wiseand an automatic credibility-boosterto state your opponent is right on points that don't matter to the end result. Why do so many lawyers feel compelled to defend indefensible positions that aren't material? Point out other reasons why you should win anyway.

Credibility also has a stylistic component. A common problem is overstatement, which will make the reader question every other forceful statement you make. Example: Defendant contends Smith v. Jones is distinguishable, but nothing could be further from the truth.

Never come on too strong.

Step #3 Adopt the Right Tone

It's at this point that many veer wildly off course.

Tone can be defined as the underlying attitude we take towards our opponent and our opponent's arguments. This attitude isn't explicitly spelled out, but shows through the fabric of our legal arguments.

Tone comes in all varietiesobjective, respectful, or professional on the one hand; condescending, self-righteous, or bitter on the other.

Too often we pull out all our guns and attack, either rudely mocking the arguments of opposing counsel, or even worse, rudely mocking opposing counsel.

This approach seems to add an extra oomph to the force of our legal argument.

Yet all too often, what actually happens is that we alienate the readerthat is, the court.

An angry, defiant tone just doesn't add a lot. Ever met someone whose response to every difficult situation is a sarcastic retort? Amusing for a few minutes, but then listeners get bored or disgusted, and want to leave the room.

Remember: The judge already knows you disagree with your opponent's position.

Begin by rationally stating why you disagree. An objective, reasonable tone is usually the most persuasive.

Step #4 Make It Easy to Read

This one seems obviousor does it? To many, the gut reaction is: Easy to read?

No one will take it seriously!

These people believe that a difficult style reflects a brilliant mind. Six-syllable words, a pompous delivery, ideas that are hidden in thickets of tangled syntaxit's how philosophers and professors write, isn't it?

Yet these aren't models for lawyers to emulate. If your readers have to work to decipher your meaning, they may ultimately give up. And they won't be persuaded.

So revise. Again and again. If the meaning isn't clear, it's not a sign of brillianceit's a sign you were rushed, or apathetic, or lazy.

As you revise, look for ways to make things easy on the reader. Since a page that presents a lot of white space is more inviting than one featuring long, dull-looking blocks of text, aim for shorter paragraphs.

Another way to add white space to the page is a liberal use of headings and sub-heading. In the text itself, use bulleted lists to quickly group related points.

Finally, eliminate unnecessary modifiers. When you complete the next-to-last draft of your brief, make another pass through the text and ruthlessly cut all unnecessary adjectives and adverbs.

Example: Because there are clearly no questions of fact for trial, Defendant is obviously entitled to summary judgment.

The point is just as strong without the adverbs.

Step #5 Take Pride in Your Work

Those who take pride in their work put out a finished product that's pleasing to the eye. It's a lesson from marketing: packaging counts. Books are judged by their covers.

So proofread carefully. Fix the typographical errors. Don't allow your name to be placed on work that looks sloppy or unprofessional.

A final component to persuasiveness is your own reputation, the history you bring to the court. As you write and file hundreds of briefs and legal memos over the course of your career, you become a name brand in many different courtsfor better or for worse.

A single misstep can undermine the goodwill you've established over the years.

In the final analysis, of course, good writing only counts for so much. Sometimes we lose because we have to defend a position that's clearly wrong.

But how much worse when we lose an argument that's clearly right. Now that's a result that's unforgivable.

Persuasion is the process of convincing an opponent to change his or her beliefs and/or behavior through moral or logical argument (rather than force). When someone is persuaded to do something, they do it because they have come to believe it is the right thing or the best thing to do. They thus do it willingly, even gladly, not grudgingly, as they do when they are forced to do something against their will.Further, this behavior change is likely to be much more stable than change brought about by force. When people are forced to do something they don't want to do, they usually watch for their next opportunity to retaliate against their opponent, or reverse the unwanted decision. If people are persuaded to change their behavior through moral or logical argument, however, the person or group who has been so persuaded will agree with the opponent's views--hence there is no need to retaliate or reverse the decision at a later time.In order for persuasion to be successful, it must be based on commonly held-beliefs and/or values. If a disputant bases his or her arguments on selfish or one-sided principles, these principles will almost certainly be rejected (and persuasion will fail). If they base their argument on widely-held principles of fairness that all sides can agree to, the persuasive effort is much more likely to succeed.While different cultures and religions have widely differing views about morality, fairness, and justice, there are often important areas of common ground that can serve as a basis for powerful persuasive efforts. The United States, for example, has a long-standing belief in the concept of equality before the law. Martin Luther King was able to make great strides toward increasing the rights of African-Americans by arguing that denying African-American equal rights was a violation of that principle. This appeal was able to deliver white support of the African-American civil rights movement that a simple revolt against the evils of which society could not have accomplished.Even when common ground cannot be found, a debate about the relative merits of competing value systems is far preferable and more constructive than the "might-makes-right" pursuit of purely selfish motives. It is, therefore, important that we identify common values which enjoy widespread support across political and religions boundaries, as well as strategies for moving intractable conflicts toward constructive moral debate. It is such a debate that will lead, over time and perhaps over generations, to evolutionary changes in a society's fundamental values.

Legal arguments are spoken presentations to a judge or appellate court by a lawyer, or parties when representing themselves of the legal reasons why they should prevail. Oral argument at the appellate level accompanies written briefs, which also advance the argument of each party in the legal dispute. A closing argument, or summation, is the concluding statement of each party's counsel reiterating the important arguments for the trier of fact, often the jury, in a court case. A closing argument occurs after the presentation of evidence