The Problem of Persuasion

One of the many things they don’t teach you in law school is how to persuade someone, especially someone in a black robe. How do you “make your case”? Law school did teach me how to do legal analysis—or at least introduced me to the basic tools of legalist reasoning—but persuasion is not the same thing as analysis.

Sure, I can state the law, apply it to the facts, and explain why my client should win. But will that really persuade anyone? A few months ago I might have said yes, or at least, “Yes, it should persuade a judge.” With only five months of practice under my belt, however, I’ve become both skeptical about whether legalist technique ever works and cynical about whether it actually works even when it seems to work. What are judges and others in a position to be persuaded really looking for?

Sometimes a judge will ask, “What gives me the authority to grant the relief you seek?” Maybe the judge is looking for a legal basis to rule in your favor. Or maybe the judge is repurposing a legalist concept—the search for “authority”—to veil a decision made on concealed, non-legal grounds: “I don’t want to rule in your favor,” the judge seems to be saying, “So no matter what you come up with, I will find a way to brush it aside as not authoritative.” Or maybe the judge really does take a legalist approach, but takes the method so seriously that he or she refuses to exercise any discretion unless there is a rule of decision so clear that ignoring it is no longer a reasonable—or sane—possibility.

Maybe “the facts” will be more helpful? I have yet to grasp this possibility. You can have a whole pile of facts, but the don’t mean anything unless you can give them a narrative structure, and even then you need some standard outside those facts to lend them the kind of moral value and persuasive weight required to reach a decision.

Maybe the central figure of your story is a bank robber with a heart of gold, so the prosecutor hammers on the “bank robber” part while the defense attorney hammers on the “heart of gold” part. What makes their different narrative emphases meaningful to a judge or jury, except for a preconditioned view that something is bad about robbing banks and something is good about having a “heart of gold”? And what is that preconditioned view? Law? Justice? Something else? What social policies are implicated by one or the other view? Are we trying to punish bank robbers, or reward the hearts of gold? Do we care more about the personal consequences for the players, or the economic consequences for those affected? Are we prohibiting certain conduct based on its inherent characteristics, which presumably do not fit the mold of our society, or are we doing something else? The law typically defines illegal acts by their inherent characteristics: taking property without consent by force or threat of force, with the intent not to return it. Other motivations are supposed to be irrelevant. But are they?

I want to fall in with those who assert that rules have a great economizing effect because they reduce the number of factors we need to consider before imposing a penalty. And that doesn’t just simplify the process of deciding when penalties ought to apply; it also simplifies the process of deciding which conduct to engage in because you can more easily predict the likelihood that a penalty will be imposed. Sometimes the rules of law, as an economizing force, will bring us to outcomes that may seem “unjust,” despite their being “legal,” but isn’t that what the “rule of law”—as opposed to the rule of a capricious tyrant, even an enlightened one—all about?

But having seen decisions that appear to flow from a source outside the rules of law, I am deeply skeptical that rational, economizing factors are what drive the decisions of judges. Which is not to say that the judges are capricious tyrants—even though I frequently disagree with their decisions on legalist grounds, I find their decisions to comport with justice almost as frequently. And there is the problem: How do you define justice, except in a circle, to say that justice is simply what “feels” right? Where are the standards? Where is the predictability? The economizing force of law? But how do you persuade someone that something is right without making recourse to some external standard that defines that rightness? “My client should win because it just feels right, Your Honor.” Fat chance persuading anyone with that argument.

This is why “you win some, you lose some.” This is why judicial outcomes are frequently controversial. This is why lawyers cannot guarantee or predict outcomes. Deep down, I suspect that nobody knows how the law works, and nobody knows what it takes to be consistently persuasive, except that you can be more polished and less objectionable. In other words, counterintuitive though it may seem when the subject is “persuasion,” I suspect that you can do much more reduce the likelihood of an adverse decision than you can to increase the likelihood of a favorable one.

Why is this? Probably because we are much better at rejecting things than accepting them, which I also suspect is why one classic decision-making technique is the “process of elimination.” The things we don’t like are the things that stick out most clearly—”like a sore thumb,” as we say—so we look for those, or just see them, first. So what is persuasion? Inspiring the judge with your positive argument, or hiding all your sore thumbs? My experience is pretty meager so far, but judges rarely seem susceptible to inspiration. Like anybody else with a heavy workload, they’re just looking for the sore thumbs that will tip your hand.

So what do you need? The law on your side? The facts on your side? Or no sore thumbs? I’m starting to think that, no matter the law or the facts, your main concern should be those sore thumbs. Do what you can to reduce the likelihood of an adverse decision because that is probably all you can do. Yes, that’s a cynical outlook, but sometimes the cynical outlook is the one that gets the job done.