How do lawyers seem to change even the most steadfast opinions in the courtroom with such grace and speed? It’s as simple — and as complicated — as breaking old mental connections and building new ones, UNLV law professor and legal writing expert Linda Berger asserts in her new book, Legal Persuasion: A Rhetorical Approach to the Science, which she co-wrote with Temple University law professor Kathryn M. Stanchi.
Terrill Pollman, founding member of the UNLV William S. Boyd School of Law’s faculty and its highly regarded legal writing program — ranked No. 1 in the country by U.S. News and World Report — chatted with Berger about the crafting of legal arguments, the impact of rhetorical choices, and the co-authorship experience.
POLLMAN: What do you think makes the book different from others on legal persuasion?
BERGER: We argue that the crux of persuasion is making favorable mental connections and breaking unfavorable ones. That conclusion emerges from blending persuasion science with classical and contemporary rhetoric — which reflects our different interests and expertise as authors.
While the cognitive science of persuasion grew out of lab experiments, rhetorical theory is based on real-life experience over a long period of history. So, if the science leads you to an odd conclusion — such as an experiment indicating that the use of words like “gray” and “bingo” primes young participants to act as if they were old — rhetoric will suggest that you test your argument on an actual audience so that audience might set you straight. On the other hand, if the rhetorical principle suggests that, for example, you should always follow the “no surprises” rule because of the audience’s preference for the expected, persuasion science might tell you that bringing up something unexpected can, on some occasions, break through to an uninterested audience.
POLLMAN: Can you give me an example from the book that illustrates that blend of rhetoric and science?
BERGER: Throughout the chapters on invention, or creation of arguments, we draw on cognitive science — that is, we draw on the research showing that intuitive connections are made when someone invokes embedded knowledge frameworks, or schema, that are already in the audience member’s mind. We draw on the rhetorical methods of making mental connections through analogy, metaphor, and storytelling.
For example, in United States v. Jones, a 2012 U.S. Supreme Court decision, the Court used a familiar schema — old-fashioned trespass — when deciding whether installing a GPS monitor on a vehicle violated the Fourth Amendment prohibition on unreasonable searches and seizures. The Court found that the government had physically trespassed onto another’s property to install the GPS monitor, even though the defendant’s objection was not to the installation but to the weeks of constant surveillance that followed. This analogy, like other familiar analogies, is effective because it taps into the human tendency to be persuaded when things seem to fall into place by themselves. A trespass occurred; therefore, there must be a Fourth Amendment violation.
POLLMAN: Your book is part of the Routledge Series on Law, Language and Communication; that makes it sound like it’s intended for an academic audience. But is that accurate? Are there practical tips it can offer practicing lawyers?
BERGER: We tried to make the book accessible to practitioners and students alike. We wanted our practical illustrations and examples to be immediately helpful to both audiences. At the same time, we wanted the book to be well grounded in rhetorical theory and cognitive science research, and we wanted to provide sources for the kinds of readers who might want to further explore them.
Students who have read the book say that it’s helped them recognize methods and strategies they already use in their writing — "Hey, that’s a metaphor,” or “Wait, here’s the narrative of my legal argument” — and then improve upon and refine those methods and strategies.
POLLMAN: Persuasive rhetoric in general — and more specifically, political rhetoric — is being blamed for some of our current societal ills. What does criticism like that mean for a book like Legal Persuasion?
BERGER: Whenever criticized for excess, rhetoric’s fallback position is always the same: Ethos, or the speaker’s integrity and credibility, will take care of it. Sooner or later, rhetoric assures you that the speaker’s ethos will matter to whether the speaker is able to persuade an audience.
Here, our goal is to help lawyers make thoughtful, informed, and deliberate choices about the arguments they put forth. To make such choices, they need first to understand the extent to which persuasion happens unconsciously and emotionally — including identifying those instances when unconscious and emotional persuasion is based on stereotypes and misimpressions rather than on empathy and understanding.
James Boyd White said that the task of all lawyers is to make the best case they can out of the materials — the facts and the law — they have at hand. He thought that by simply accomplishing that task, lawyers would naturally gravitate toward improving their practice and the system, making sure their arguments aligned with facts and advancing laws toward greater coherence and fairness. To make the best case they can, lawyers need to know a great deal about persuasion science, rhetorical theory, and the real-life practice of persuasion. Legal Persuasion can help them in that task.
POLLMAN: What was it like working with Professor Stanchi? Any surprises on the co-authorship journey together?
BERGER: Kathy and I respect and admire each other’s work, and we expected to learn a lot from each other. So we thought writing the manuscript together would work, but we were surprised by just how valuable it was to write and re-write together. Some of my most entrenched ideas were changed by hashing things out together, not only in discussion but also in writing and editing our way through the manuscript.
The best thing about collaboration is that you create something that never would have been produced without the collaboration. Neither Kathy nor I could have — or would have — done alone what we did together.