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

55 Pages Posted: 24 Sep 2007 Last revised: 28 Jun 2010

Kathryn Stanchi

Temple University - James E. Beasley School of Law

Date Written: June 28, 2010

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.

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

JEL Classification: K41

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: https://ssrn.com/abstract=1015537

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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