Abstract

http://ssrn.com/abstract=1015537
 
 

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


Kathryn Stanchi


Temple University - James E. Beasley School of Law

June 28, 2010

Rutgers Law Review, Vol. 60, No. 2, p. 381, 2008
Temple University Legal Studies Research Paper No. 2007-23

Abstract:     
For a long time, practitioners and scholars have debated whether volunteering negative information in legal advocacy is strategically advisable. Many advocates consider disclosure of information that is unfavorable to the client's case to be inconsistent with the duty of zealous advocacy, while others consider disclosure to be the surer path to victory. The advocates on both sides of this debate rely largely on legal lore to justify their beliefs about what persuades jurors and judges. Even within this vigorous debate, the growing body of scientific research on the subject of persuasion has not played a pivotal role, and in the few instances when the science is mentioned, the nuances and details of it are glossed over.
Playing with Fire changes the nature of the debate by examining in depth the social science studies about disclosure of negative information in a persuasive situation, including all their nuances and complexities. In particular, Playing with Fire is the first law journal article to look at all the major scientific studies in the contexts of law, advertising and politics that examine how an audience reacts to an advocate's voluntary disclosure of negative information. The article applies the results and underlying theories of these studies to the question of disclosure of adverse information in legal advocacy. The result is a deeper, more nuanced picture of how to deal with adverse information than has previously characterized the debate in the legal context.

Number of Pages in PDF File: 55

Keywords: adverse authority, negative authority, negative material, bad law, bad facts, inoculation, legal advocacy, legal persuasion, social science and law

JEL Classification: K41

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Date posted: September 24, 2007 ; Last revised: June 28, 2010

Suggested Citation

Stanchi, Kathryn, Playing With Fire: The Science of Confronting Adverse Material in Legal Advocacy (June 28, 2010). Rutgers Law Review, Vol. 60, No. 2, p. 381, 2008; Temple University Legal Studies Research Paper No. 2007-23. Available at SSRN: http://ssrn.com/abstract=1015537

Contact Information

Kathryn Stanchi (Contact Author)
Temple University - James E. Beasley School of Law ( email )
1719 N. Broad Street
Philadelphia, PA 19122
United States
215-204-8807 (Phone)
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