C. Use of Contemporary Rhetoric and Argumentation Theory
Students of persuasive legal writing have also looked to the discipline of argumentation, a relatively new branch of philosophy that seeks to study and identify the process and substance of argumentation, particularly logic and rhetoric. Included here are some of the foundational works of argumentation theory from which scholars of legal advocacy have drawn, as well as some of the works in law inspired by this emerging discipline.
29. Paul T. Wangerin, A Multidisciplinary Analysis of the Structure of Persuasive Arguments, 16 Harv. J. L. & Pub. Policy 195 (1993).
30. Kurt M. Saunders, Law as Rhetoric, Rhetoric as Argument, 3 J. ALWD 166 (2006).
31. Jack Balkin, A Night in the Tropics: The Reason of Legal Rhetoric and the Rhetoric of Legal Reason, in Law’s Stories: Narrative and Rhetoric in the Law 211 (Peter Brooks & Paul Gewirtz eds., Yale U. Press 1996).
32. Laura E. Little, Hiding with Words: Obfuscation, Avoidance, and Federal Jurisdiction Opinions, 46 UCLA L. Rev. 75 (1998).
33. Linda Levine & Kurt M. Saunders, Thinking Like a Rhetor, 43 J. Leg. Educ. 108 (1993) (there is some classical rhetoric in here, too).
34. Linda L. Berger, Of Metaphor, Metonymy, and Corporate Money: Rhetorical Choices in Supreme Court Decisions on Campaign Finance Regulation, 58 Mercer L. Rev. 949 (2007).
35. Linda L. Berger, What is the Sound of a Corporation Speaking? How the Cognitive Theory of Metaphor Can Help Lawyers Shape the Law, 2 J. ALWD 169 (2004).
36. Austin Sarat & Thomas R. Kearns, eds., The Rhetoric of Law (U. of Michigan Press 1994).
37. Erwin P. Bettinghaus & Michael J. Cody, Persuasive Communication (4th ed., Wadsworth Publg. 1987).
38. Stephen Toulmin et al., An Introduction to Reasoning (2d ed., Prentice Hall 1984).
39. Frans H. Van Eemeren et al., Fundamentals of Argumentation Theory: A Handbook of Historical Backgrounds and Contemporary Developments (Lawrence Erlbaum Assocs. 1996).
40. Chaim Perelman & Lucie Olbrechts-Tyteca, The New Rhetoric: A Treatise on Argumentation (U. of Notre Dame Press 1969).
41. Jerome Bruner & Anthony Amsterdam, Minding the Law (Harv. U. Press 2002) (particularly chs. 2-3, 6-7).
D. Use of Visual and Graphic Arts to Enhance Persuasive Writing
Branching off from creative writing and narrative techniques, lawyers and legal writers have begun to explore the persuasive potential of other media arts, such as filmmaking and other visual arts. Thinking about why movies or paintings affect us, and how they teach us, can only broaden the lawyer’s array of persuasive tools.
42. Ruth Anne Robbins, Painting with Print: Incorporating Concepts Of Typographic And Layout Design Into The Text Of Legal Writing Documents, 2 J. ALWD 108 (2004).
43. Elyse Pepper, The Case for “Thinking Like a Filmmaker”: Using Lars von Trier’s Dogville as a Model for Writing a Statement of Facts, 14 Leg. Writing 171 (2008).
44. James Parry Eyster, Lawyer as Artist: Using Significant Moments and Obtuse Objects to Enhance Advocacy, 14 Leg. Writing 87 (2008).
45. Mary Beth Beazley, A Practical Guide to Appellate Advocacy ch. 11 (2d ed., Aspen 2006).
E. Use of Social Science in Persuasive Writing
Yet another burgeoning area of the discipline of persuasive legal advocacy is the use of social science data. Persuasion and human decisionmaking have become a primary focus of fields within communication, psychology and advertising. Increasingly, legal scholars are taking advantage of this research, and using it to enhance our knowledge of legal advocacy. Included here also are some of the more influential and helpful sources for those looking to expand their knowledge about the psychology and science of persuasion.
46. James Stratman, Investigating Persuasive Processes in Legal Discourse, 17 Discourse Processes 1 (1994).
47. Kathryn M. Stanchi, The Science of Persuasion: An Initial Exploration, 2006 Mich. St. L. Rev. 411.
48. Kathryn M. Stanchi, Playing with Fire: The Science of Confronting Adverse Material in Legal Advocacy, 60 Rutgers L. Rev 381 (2008).
49. Robert Cialdini, Influence: The Psychology of Persuasion (rev. ed., Collins Business 2007).
50. Noah J. Goldstein, Steven Martin & Robert Cialdini, Yes! 50 Scientifically Proven Ways to be Persuasive (Free Press 2008).
51. Richard M. Perloff, The Dynamics of Persuasion: Communication and Attitudes in the 21st Century (3d ed., Lawrence Erlbaum Assocs. 2007).
52. James B. Stiff & Paul A. Mongeau, Persuasive Communication (2d ed., Guilford Press 2003).
53. Daniel O’Keefe, Persuasion: Theories and Research (Sage Publications 1990).
F. Using Authority to Persuade
Another critical component of persuasion in law is the use of precedent. Various commentators have explored the meaning of authority in persuasion—how does law define authority, what are the limits of legal authority and how should authority be used? The works in this category expand both our notions of how to use the authority, like statutes and case law, with which lawyers are familiar, but also expand the notion of what constitutes authority.
54. Ellie Margolis, Beyond Brandeis: Exploring the Use of Non-Legal Materials in Appellate Briefs, 34 U.S.F. L. Rev. 197 (2000).
55. Dan Hunter, Teaching and Using Analogy in Law, 2 J. ALWD 151 (2004) (see also Dan Hunter’s related, and longer, article, Dan Hunter, Reason Is Too Large: Analogy and Precedent in Law, 50 Emory L.J. 1197, 1215-20 (2001)).
56. Ellie Margolis, Surfin' Safari-Why Competent Lawyers Should Research On The Web, 10 Yale J. Law & Tech. 82 (2007).
57. Coleen M. Barger, On The Internet, Nobody Knows You're A Judge: Appellate Courts' Use Of Internet Materials, 4 J. App. Prac. & Proc. 417 (2002).
58. Ellie Margolis, Closing the Floodgates: Making Persuasive Policy Arguments In Appellate Briefs, 62 Mont. L. Rev. 59 (2001).
59. Robert C. Berring, Legal Information and the Search for Cognitive Authority, 88 Cal. L. Rev. 1673 (2000).
60. Andrew Solomon, Making Unpublished Opinions Precedential: A Recipe For Ethical Problems & Legal Malpractice? 26 Miss. C. L. Rev. 185 (2006-2007).
61. Michael R. Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing chs. 5-6 (2d ed., Aspen 2008).
G. The Structure of Legal Arguments and the Use of Framing Techniques
At the heart of persuasion is the construction of substantive legal arguments. The works included in this section of the bibliography dissect legal doctrine into component arguments, showing how most of the law can be reduced to a predictable set of competing principles. For example, Jack Balkin’s piece explores, among other things, how many legal arguments can be understood as a set of competing dyads, such as “No Liability without Fault” versus “As Between Two Innocents, Let the Person Who Caused the Damage Pay.” Similarly, Pierre Schlag and David Skover show the common “attacks” that lawyers make on legal arguments, such as attacks on analogy or attacks on authority. Learning and understanding the core principles upon which most legal arguments are based is essential to the creation and construction of persuasive legal arguments and thus these texts are critical to the effective advocate’s arsenal.
The pieces on legal argumentation also inspired a related set of articles on the strategic framing of legal questions. The “framing” articles recognize that the outcome of a legal dispute is often determined by the way the question is framed, and explore the different ways that legal questions can be framed.
62. Duncan Kennedy, A Semiotics of Legal Argument, 42 Syracuse L. Rev. 75 (1991) (originally printed in 3 Law & Semiotics 167).
63. Jack M. Balkin, The Crystalline Structure of Legal Thought, 39 Rutgers L. Rev. 1 (1986).
64. Jennifer Jaff, Frame-shifting: An Empowering Methodology for Teaching and Learning Legal Reasoning, 36 J. Leg. Educ. 249 (1986).
65. Laura E. Little, Characterization and Legal Discourse, 46 J. Leg. Educ. 372 (1996).
66. Joseph William Singer, Legal Storytelling: Persuasion, 87 Mich. L. Rev. 2442 (1989).
67. Walter Probert, Law And Persuasion: The Language-Behavior of Lawyers, 108 U. Pa. L. Rev. 35 (1959).
68. Bryan Garner, The Deep Issue: A New Approach to Framing Legal Questions, 5 Scribes J. Leg. Writ. 1 (1994–95).
69. Kathryn M. Stanchi, The Science of Persuasion: An Initial Exploration, 2006 Mich. St. L. Rev. 411.
70. Wilson Ray Huhn, The Five Types of Legal Argument (2d ed., Carolina Academic Press 2008).
71. Karl Llewellyn, Bramble Bush: On Our Law and Its Study (Oceana Publications, Inc. 1981).
72. Edward H. Levi, An Introduction to Legal Reasoning (U. Chi. Press 1962).
73. Pierre Schlag & David M. Skover, Tactics of Legal Reasoning (Carolina Academic Press 1986).
H. The Importance of Emotion to Persuasive Legal Writing
Often overlooked by lawyers, emotion can play a critical role in persuasion. Although emotion, as well as its Aristotelian counterpart, pathos, appear in works throughout this entire list, in the works that follow, legal commentators have argued for the centrality of emotion to law and legal argumentation. Though many of these commentators argue that the law should recognize the importance of emotion in law and legal argument, some, including Martha Nussbaum, argue that certain emotions can be a destructive influence in law.
74. Peter Brandon Bayer, Not Interaction but Melding—The “Russian Dressing” Theory of Emotions: An Explanation of the Phenomenology of Emotions and Rationality with Suggested Related Maxims for Judges and Other Legal Decision Makers, 52 Mercer L. Rev. 1033 (2001).
75. Laura E. Little, Negotiating The Tangle Of Law And Emotion, 86 Cornell L. Rev. 974 (2001).
76. Lynne N. Henderson, Legality And Empathy, 85 Mich. L. Rev. 1574 (1987).
77. Peter H. Huang & Christopher J. Anderson, A Psychology of Emotional Legal Decision Making: Revulsion and Saving Face in Legal Theory and Practice, 90 Minn. L. Rev. 1045 (2006).
78. Symposium, Law, Psychology, and the Emotions, 74 Chi.-Kent L. Rev. 1423 (2000).
79. Eric A. Posner, Law and the Emotions, 89 Geo. L.J. 1977 (2001).
80. Kathryn M. Stanchi, Feminist Legal Writing, 39 S.D. L. Rev. 387 (2002).
81. Martha C. Nussbaum, Hiding from Humanity: Disgust, Shame, and the Law (Princeton U. Press 2004)
82. Susan A. Bandes, ed., The Passions of Law (NYU Press 1999).
83. Michael R. Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing chs. 5-6 (2d ed., Aspen 2008).
I. Ethical Considerations in Persuasion
Any time lawyers consider how to influence their audience, a critical constraint is ethics. While it is our task to persuade and convince, lawyers must be vigilant that persuasion does not bleed into manipulation or deceit. The works in this category define the boundaries of ethical behavior in persuasion, either by a deep exploration of the rules of ethics, or by criticism of certain kinds of rhetoric. Also included here are works that focus on the legal arguments that can spring from ethos, the persuasion that results from the establishment of the speaker’s credibility, reputation and credentials.
84. Elizabeth Fajans & Mary R. Falk, Shooting from the Lip: United States v. Dickerson, Role [Im]morality and the Ethics of Legal Rhetoric, 23 U. Haw. L. Rev. 1 (2000).
85. Beverly J. Blair, Ethical Considerations In Advocacy: What First-Year Legal Writing Students Need to Know, 4 Leg. Writing 109 (1998).
86. Eugene Garver, For the Sake of Argument: Practical Reasoning, Character, and the Ethics of Belief (U. Chi. Press 2004) (see also the review of Garver’s book, David McGowan, So What If It’s All Just Rhetoric, University of Minnesota Law School Legal Studies Research Paper Series, Research Paper No. 04-15 (available at http://ssrn.com/abstract=578542).
87. Michael R. Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing ch. 16 (2d ed., Aspen 2008).
88. Melissa H. Weresh, Legal Writing: Ethical and Professional Considerations (LexisNexis 2006).
J. What Judges Think
Most of the works on this list are studies and ruminations of advocates about how to persuade the legal audience. But also important is what the audience itself thinks about the persuasive tactics used by lawyers. Included here are some of the leading studies of what judges think about legal writing and advocacy, as well as some notable works written by judges for lawyers about how to best sway judicial decision-making.
89. Kristen K. Robbins, The Inside Scoop: What Federal Judges Really Think About the Way Lawyers Write, 8 Leg. Writing 257 (2002).
90. Bryan A. Garner, Judges on Briefing: A National Survey, 8 Scribes J. Leg. Writing 1 (2001–02).
91. Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument (2d ed., NITA 2003).
92. Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges (Thomson West 2008).
K. Oral Argument
Finally, an essential component of persuasive legal advocacy— particularly persuasive writing—oral advocacy. Linked inextricably with briefwriting, oral advocacy is the culmination of the brief writer’s task, and highlights the brief writer’s expertise, credibility and verbal skill. Although it is the close companion of written advocacy, oral advocacy has its own conventions and constraints, and many commentators have weighed in on what makes an excellent oral argument. What follows is a smattering of the leading voices on the topic.
93. Michael J. Higdon, Oral Argument and Impression Management: Harnessing the Power of Nonverbal Persuasion for a Judicial Audience, 57 U. Kan. L. Rev. 631 (2009).
94. Stephen A. Newman, Using Shakespeare to Teach Persuasive Advocacy, 57 J. Leg. Educ. 36 (2007).
95. Stephen M. Shapiro, Oral Argument in the Supreme Court of the United States, 33 Cath. U. L. Rev. 529 (1984).
96. Richard H. Seamon, Preparing For Oral Argument In The United States Supreme Court, 50 S.C. L. Rev. 603 (1999).
97. David C. Frederick, The Art of Oral Advocacy (West 2003).
98. Frank M. Coffin, A Lexicon of Oral Advocacy (NITA 1984).
99. Ronald J. Waicukauski et al., The Winning Argument (ABA 2001).
100. Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument ch. 15-16 (2d ed., NITA 2003).
101. Mary Beth Beazley, A Practical Guide to Appellate Advocacy ch. 13 (2d ed., Aspen 2006).
102. Richard K. Neumann, Jr., Legal Reasoning and Legal Writing: Structure, Strategy and Style ch. 34 (5th ed., Aspen 2005).
103. Linda H. Edwards, Legal Writing and Analysis ch. 22 (2d ed., Aspen 2007).