I recently came across an article by Prof. Kathryn M. Stanchi that I recommend to appellate lawyers and anyone else in the persuasion business: The Science of Persuasion: An Initial Exploration, 2006 Mich. St. L. Rev. 411, available on SSRN.
Stanchi starts her article by saying something that I’ve come to believe: that persuasive writers should “study the existing social-science data about human decisionmaking.” As she points out, trial lawyers have been doing that for years. But “appellate lawyers have been slow to follow theiir trial brethren in the pursuit of scientific data about what persuades people.” Instead, Stanchi says, “the study of persuasive writing has been dominated by a kind of ‘armchair psychology’—a set of conventions and practices, handed down from lawyer to lawyer, developed largely from instinct and speculation.” These conventions and practices are handed down “without analysis or critique, and without taking stock of the growing body of research from other disciplines that would provide some evidence about whether the conventional wisdom is an accurate account of human decisionmaking.”
Let me add another observation, which goes to the good people who organize appellate CLE presentations. The conventional wisdom there is to recruit as many judges as possible as speakers to say what does and doesn’t work. That’s a good idea: there’s some wisdom in asking the fish which bait is most alluring. But even the best judges will be aware of only what they consciously perceive as being persuasive; they likely won’t be aware of what works subconsciously. For that data, we need to look to sciences such as cognitive psychology.
Stanchi’s article goes on to describe several strategies for constructing legal arguments and the data supporting their effectiveness. All of that material is worth reading. My wish is that readers take to heart what she says in her introduction and—maybe—change their way of thinking about persuasion itself and how to discover ways to be better persuaders.