Which brief is perceived as stronger?
- A brief with three strong arguments
- A brief with the same three strong arguments plus one weak argument
Appellate judges and experienced appellate advocates will probably say that the first brief will make a better impression on the court than the second. But are they right? Science says they are.
In his book Thinking, Fast and Slow, psychologist Daniel Kahneman describes an experiment where subject were asked put values on two sets of dishes. One set had 24 pieces, all in good condition. The other had 40 pieces, including the same 24 pieces in good condition plus 16 additional pieces, but with 9 of the 16 additional pieces broken. When presented with both sets, subjects logically tended to put a higher value on the second set. But when subjects were asked to evaluate only one set, the subjects evaluating the first set (24 pieces in good condition) gave higher values than subjects evaluating the second set (31 pieces in good condition plus 9 broken pieces). In short, the inclusion of the broken pieces dragged down the perceived value of the entire set.
Kahneman describes another experiment yielding similar results. The experimenter auctioned off sets of baseball cards. Some sets had 10 high-value cards; other sets had 13 cards, including the same 10 high-value cards plus 3 additional cards of lesser value. The result: people were willing to pay more for the set of 10 high-value cards than the set of 13 cards that included the same 10 high-value cards. Again, inclusion of the lower-value cards tended to drag down the perceived value of the entire set.
What’s going on here? Kahneman says that the test subjects assigned value to the entire set of dishes or baseball cards by averaging the items included in the set. When the average value of any one item in the set was high, test subjects put a higher value on the entire set. Conversely, when the average value of any one item was lower, test subject put a lower value on the entire set.
A judge reading a brief may make an analogous valuation. If this is so, then a brief with three strong arguments will be perceived as stronger than a brief with the same three strong arguments plus one weak argument.