Many good CLE programs for litigators include panels of judges, who tell the attending lawyers the kinds of argument and behavior that judges like to see or don’t like to see. I appreciate these opportunities, since judges are the people I’m trying to persuade. But I’ve often wondered whether these presentations are answering the right question. While I want the judges to like me, I want even more to win. And I’ve wondered whether what judges like is really the same as what persuades them.
So I salute Prof. Ken Chestek of the Indiana University School of Law.1 He recently conducted a study, trying to determine empirically whether a brief with an element of storytelling is more persuasive or less persuasive than a purely logical, law-driven brief—one that omits the interesting but perhaps legally irrelevant story. He published the results of his study in an article that you can download here. Although (as Prof. Chestek acknowledges) the sample size may be too small to draw definitive conclusions, the study’s results suggest that storytelling makes for a more persuasive brief.
1 Another reason I salute Prof. Chestek is that he is a man who supports his home team and honors his bets. For that story, visit Legal Writing Prof Blog.