Persuasion: An Annotated Bibliography
Kathryn Stanchi*
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I. Introduction
Persuasion is at the heart of the lawyer’s craft. Whether you are a litigator, transactional lawyer, or trial lawyer, part of your job is to persuade people to make decisions, or do things, that they may not have chosen to do but for your intervention. Lawyers persuade judges, juries, opposing counsel, colleagues, and clients. Nevertheless, for something that is so central to the art of lawyering, persuasion continues to be a somewhat mysterious phenomenon for lawyers. What is it that compels us to make one decision and not another? How do we convince someone to do one thing and not another? The idea that it is possible, through behavior, writing or speaking, to deliberately and consciously influence another person is both fascinating and perplexing. Because it is so important to our craft, and because it is a little mysterious, persuasion marks a critical intersection where the realities of law practice meet the intellectual pursuit of legal scholarship. It has, as a result, become a principal focus for scholars whose expertise lies in the areas of legal writing and legal method. Legal writing scholars occupy a similarly intersectional space in the legal academy: our expertise lies equally in the hard realities of the practical and in the ivory tower of the academy.
That the subject of persuasion in law has both practical and theoretical aspects makes it an eminently apt subject for the ALWD journal, which focuses on scholarship that addresses the substance of what lawyers do— particularly the way that lawyers write and communicate. In other words, persuasion is a fitting topic for J. ALWD, a journal devoted to the exploration of the theories that underlie legal practice and communication.
In keeping with the mission of J. ALWD, this bibliography focuses on books and articles that tell us something about how to persuade in legal writing. The backbone of the bibliography is scholarship that dedicates itself explicitly to the task of illuminating something about the mysterious phenomenon of persuasion in legal communication. Included here are articles such as those addressing the use of policy arguments, classical rhetoric, and metaphors in legal writing. But also included are articles and books that can ?? tell us something important about persuasion in legal writing but that have, for whatever reason, not discussed writing or law practice explicitly. These include ruminations on argumentation theory, “framing” of legal arguments, and semiotics. Together, they tell a riveting story of how lawyers go about the business of convincing people.
A list like this, however, is bound to be incomplete. My goal here was to set out a kind of “greatest hits” of persuasion; a starter list for someone who wants to learn more about the topic. In doing so, my focus was on works that analyze persuasion deeply and theoretically, and less so on “how to” lists. This is not a judgment on the utility of the shorter “how to” lists of persuasion, which are valuable tools and eminently useful to both practitioners and academics. But I thought this bibliography should be a celebration of the renaissance of the discipline of persuasion and rhetoric in law and legal writing, and the treatment of persuasion as a theoretical, academic pursuit. So the works that follow are (mostly) those that go beyond a statement of what is persuasive toward a more analytical examination of why or how something persuades. What I learned from my research is that this focus blurred the boundaries of multiple disciplines within and without law. For example, once I decided that any bibliography on persuasive legal writing had to take into account the writings on the formulation of legal arguments, an area of the discipline that legal writing professionals have (oddly and unfortunately) not occupied, the list expanded significantly.
To make the bibliography useful and not unwieldy, at some point I had to stop listing. I made judgment calls and I culled. I eliminated both the works that were too basic and those that were too abstruse. If there was a great deal of scholarly activity in an area, I took a representative sampling (a sort of “see e.g.” citation) based on what I believed would be the best starting point for the interested reader. The resulting list has something for everyone with more than a passing interest in persuasion, but it was bound to be a little idiosyncratic. I see it as the start of a dialogue, and I welcome comments on what readers thought of what I have included, and criticism for what I have overlooked.
II. The Bibliography
Organizationally, the works included in the bibliography are roughly grouped into eleven categories. Of course, there is often considerable overlap among the categories, and many of the works could comfortably fit in more than one. When this was the case, I generally placed the work in only one category: the one I thought represented the dominant theme of the work. A couple of times I categorized a work—this was usually a foundational, major work such as a book—in two places. In terms of organization, there is no hierarchy in the order of the works. I started with categories of works that are primarily interdisciplinary, such as those incorporating narrative theory, rhetoric, visual arts, and social science. I then moved to works that had, as their dominant theme, a particular and practical aspect of persuasion, such as use of authority, structure, emotion, and ethics. There is some correlation in these categories to the Aristotelian processes of logos, pathos and ethos, but the correlation was not exact, and the works often addressed different concepts in addition to the traditional Aristotelian methods. Therefore, I did not use the Aristotelian names in these categories, despite the strong Aristotelian underpinning in many of the works. Finally, I turn to some of the key writings either authored by judges, or works reflecting judicial perspectives on legal persuasion, which I believe deserves its own category because it represents the unique opportunity for lawyers to hear directly from our primary audience. Finally, rounding out the bibliography is a set of works on oral argument and persuasive speaking.
Within each category, again there is no hierarchy in the organization. The only real scheme within each category was to start narrow, with the articles most explicitly addressing legal communication, and end with the more foundational works, mostly books, from which the articles draw. The organization is not alphabetical; it is meant to be random. I doubt true randomness was achieved, however. Here, even more so than with the order of the categories, I suspect that students of the subconscious will detect in the order of the works something of my views about the “leading” works in the category.
A. Use of Narrative Theory
At the forefront of the scholarship on persuasion is the use of narrative theory to inform persuasive legal writing and legal argument. The heart of persuasive legal advocacy is the facts of the client’s story. Facts are so critical to persuasion that it is an axiom of law practice that lawyers would rather have bad law than bad facts. In the works that follow, scholars address the importance of facts in persuasion and borrow various techniques from narrative theory to show how to tell a more persuasive story in briefs and other legal documents. Among other things, these writers encourage lawyers to use techniques from creative fiction to tell stories that are compelling and affecting to the audience. Also included here are the core works on narrative theory as applied to law and legal argumentation. There is some significant overlap between some of the works here and some in the Contemporary Rhetoric category, but I have tried to apply my “dominant” theme rule as best I could.
1. Brian J. Foley & Ruth Anne Robbins, Fiction 101: A Primer for Lawyers on How to Use Fiction Writing Techniques to Write Persuasive Facts Sections, 32 Rutgers L.J. 459 (2001).
2. Ruth Anne Robbins, Harry Potter, Ruby Slippers, and Merlin: Telling the Client’s Story Using the Characters and Paradigm of the Archetypal Hero’s Journey, 29 Seattle U. L. Rev. 767 (2006).
3. Shaun B. Spencer, Dr. King, Bull Connor, and Persuasive Narratives, 2 J. ALWD 209 (2004).
4. Linda H. Edwards, The Convergence of Analogical and Dialectic Imaginations in Legal Discourse, 20 Leg. Stud. Forum 7 (1996).
5. Philip N. Meyer, Vignettes from a Narrative Primer, 12 Leg. Writing 229 (2006).
6. Kenneth D. Chestek, The Plot Thickens: Appellate Brief as Story, 14 Leg. Writing 127 (2008).
7. Stacy Caplow, Putting the “I” in Wr*t*ng: Drafting an A/Effective Personal Statement to Tell a Winning Refugee Story, 14 Leg. Writing 249 (2008).
8. J. Christopher Rideout, Storytelling, Narrative Rationality, and Legal Persuasion, 14 Leg. Writing 53 (2008).
9. Gerald P. Lopez, Lay Lawyering, 32 UCLA. L. Rev. 1 (1984).
10. Delia B. Conti, Narrative Theory And The Law: A Rhetorician's Invitation To The Legal Academy, 39 Duq. L. Rev. 457 (2001).
11. John Leubsdorf, The Structure of Judicial Opinions, 86 Minn. L. Rev. 447 (2001).
12. Jerome Bruner & Anthony Amsterdam, Minding the Law (Harv. U. Press 2002) (particularly chs. 4-5).
13. Michael R. Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing ch. 3 (2d ed., Aspen 2008).
14. Stefan H. Krieger & Richard K. Neumann, Jr., Essential Lawyering Skills, Interviewing, Counseling, Negotiation and Persuasive Fact Analysis § 13.4 (3d ed., Aspen Law & Bus. 2007).
Having included mostly articles that encourage lawyers to use narrative techniques to tell the most persuasive, most engaging story for their client, it is also important to mention that there are times when “stories” can work against a client, and a lawyer. Sometimes, people can be too quick to rely on stock stories instead of reality. In these essays, the authors remind us that life is not always a story, with a graceful arc, explainable consequences, and a seamless denouement. Life can be unfair; coincidences, even bizarre ones, occur. So sometimes, lawyers have to work against the typical story line to show the audience the truth.
15. Kim Lane Scheppele, Just The Facts, Ma'am: Sexualized Violence, Evidentiary Habits, And The Revision Of Truth, 37 N.Y. Law Sch. L. Rev. 123 (1992).
16. Alan M. Dershowitz, Life is Not a Dramatic Narrative, in Law’s Stories: Narrative and Rhetoric in the Law 99 (Peter Brooks & Paul Gewirtz eds., Yale U. Press 1996).
B. Use of Classical Rhetoric
In addition to drawing from recent developments in the fields of psychology and neuroscience, students of persuasive legal writing have also explored classical rhetorical principles to enhance persuasion in legal writing. I have broken this substantial and broad category into three parts. The first part includes articles that discuss classical rhetoric generally, or focus on the Aristotelian triad of logos, pathos and ethos and its use to enhance persuasive argumentation. The second part includes articles that focus a bit more narrowly on particular stylistic devices such as metaphor, literary allusions and other figures of speech. The last part lists some of the classic texts on rhetoric from which the legal scholarship has drawn.
Part 1: General Classical Rhetoric
17. Michael H. Frost, Ethos, Pathos and Legal Audience, 99 Dick. L. Rev. 85 (Fall 1994).1
18. Michael H. Frost, With Amici Like These: Cicero, Quintilian and the Importance of Stylistic Demeanor, 3 J. ALWD 5 (2006).
19. Michael H. Frost, Greco-Roman Legal Analysis: The Topics of Invention, 66 St. John’s L. Rev. 107 (1992-93).
20. Michael H. Frost, Brief Rhetoric: A Note on Classical and Modern Theories of Forensic Disclosure, 38 U. Kan. L. Rev. 411 (1989-1990).
21. Kristen K. Robbins, Paradigm Lost: Recapturing Classical Rhetoric To Validate Legal Reasoning, 27 Vt. L. Rev. 483 (2003).
22. Steven D. Jamar, Aristotle Teaches Persuasion: The Psychic Connection, 8 Scribes J. Leg. Writing 61 (2001–02).
Part 2: Metaphor and Stylistic Devices
23. Michael R. Smith, Levels of Metaphor in Persuasive Legal Writing, 58 Mercer L. Rev. 919 (2007).
24. Michael H. Frost, Greco-Roman Analysis Of Metaphoric Reasoning, 2 Leg. Writing 113 (1996).
Part 3: Foundational Works
25. Michael R. Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing (2d ed., Aspen 2008).
26. Aristotle, On Rhetoric (George A. Kennedy trans., Oxford U. Press 1991).
27. Marcus Fabius Quintilianus, Institutio Oratoria (H.E. Butler trans., Harv. U. Press 1921).
28. Edward P.J. Corbett & Robert J. Connors, Classical Rhetoric for the Modern Student 401 (4th ed., Oxford U. Press 1999) (see also prior editions of this book, authored by Edward P.J. Corbett).
* © Kathryn Stanchi 2009. Associate Professor of Law, Temple University Beasley School of Law. I want to thank J. ALWD for embarking on this project of studying persuasion, and for allowing me to author the bibliography. Thanks to Ellie Margolis, Kristen Murray, Ruth Anne Robbins and the J. ALWD Board for their excellent and helpful suggestions on what to include. Many thanks go to Mindy King-Naylor for her speedy and astute research help. This paper was supported by the Clifford Scott Green Research Fund in Law.
1 Many of Michael Frost’s articles are collected in Michael H. Frost, Introduction to Classical Legal Rhetoric: A Lost Heritage (Ashgate Publg. 2005).