A Lawyer's Hidden Persuader: Genre Bias and How It Shapes Legal Texts by Constraining Writers' Choices and Influencing Readers' Perceptions
67 Pages Posted: 14 Feb 2014
Date Written: February 1, 2014
Bret Rappaport suggests that genre be considered a kind of cognitive bias, a term he coins "genre bias." Like other cognitive biases, genre in the legal context may skew rational thought in two ways. It constrains the texts that lawyers and judges use in specific circumstances (criminal lawyers, patent lawyers, environmental lawyers, divorce judges), and it influences readers. Indeed, Rappaport reasons that the work of both lawyers and judges is limited by a highly structured set of conventions.
Applying these theories, Rappaport turns first to two transactional document genres, patent applications and wills, to show how these highly structured genres function in the real legal world. For transactional documents, he recommends against never altering genre conventions, since these documents must be timeless, multi-purpose, and infinite. However, with persuasive documents, and in particular the appellate brief -- a litigation sub-genre -- he somewhat modifies his advice. Although he recognizes the importance of reader expectations -- here, the court -- he acknowledges that a compelling reason may at times justify the risk of confounding reader expectations by breaking with convention. He concludes by stating that lawyers who view law and legal writing through the lens of genre bias will better understand how legal texts are "conceived, received, and perceived."
Keywords: Cognitive bias, genre, genre bias, legal writing,
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