The Science of Persuasion: An Initial Exploration

Abstract:     
The Science of Persuasion is among the first law journal articles to analyze social science data on persuasion and human decision-making and use the data to evaluate the conventions of persuasive legal writing. The primary impetus of the article is that the study of the science of persuasion by persuasive legal writers is long overdue, and that lawyers have an obligation to test and re-examine the traditions and conventions of persuasive legal writing using data and theories from other disciplines.

Although trial lawyers have taken significant steps to study and probe social science for ideas about how to persuade (or pick) juries, appellate lawyers have been slow to follow. Instead, the study of persuasive legal writing has been dominated by a kind of armchair psychology - a set of conventions and practices, handed down from lawyer to lawyer, developed largely from instinct and speculation. By and large, the information available to lawyers about persuasive legal writing reproduces these conventions and practices without analysis or critique, and without taking stock of the growing body of research from other disciplines that would provide some evidence about whether the conventional wisdom is an accurate account of human decision-making.

The Science of Persuasion begins the overdue examination of persuasive theory by analyzing two key concepts: sequential request strategies and audience involvement. Sequential request strategies test whether the content of an initial request can prime the reader to accept a later request. The data about sequential request strategies can inform persuasive legal writing by helping advocates make conscious decisions about the structure of arguments and the crafting of argument chains. Involvement refers to the level of personal relevance or connection felt by the recipient of a persuasive message. The details and nuances of how message recipients respond to appeals to their motivation and investment in the message have the potential to change the way advocates use analogy, policy and emotion in persuasive legal writing. For these two concepts, the article describes and analyzes the social science data and theories and posits how they might inform persuasive legal writing, focusing in particular on how the data might challenge the conventional wisdom of what is persuasive in law. Finally, the article gives concrete examples from appellate briefs to demonstrate how lawyers might incorporate the theories and data into their practice.

Keywords: legal writing, persuasion, appellate briefs

JEL Classifications: K10, K19

Accepted Paper Series