For The Defense, December 2011 - DRI Today
For The Defense, December 2011 - DRI Today
For The Defense, December 2011 - DRI Today
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Writers’ Corner<br />
Social Proof<br />
Why Precedents Are Persuasive<br />
By Linda Morkan<br />
How is a legal brief like canned laughter? You know<br />
canned laughter: that annoying group laugh used on<br />
sit-coms and late-night talk shows, hinting to the home<br />
audience that something funny has occurred. Indeed,<br />
something absolutely hilarious, as proven by the fact<br />
that the studio audience is laughing and hinting that you<br />
should be, too. Come, laugh with the others! It’s funny,<br />
or else the others wouldn’t be laughing, right?<br />
In the social sciences, this is referred to as “social<br />
proof,” the phenomenon of looking at what other people<br />
think is correct to determine what is correct. In other<br />
words, we believe that when a lot of people do something,<br />
it must be the right thing to do. We find this a handy<br />
shortcut because following someone else’s lead requires<br />
less independent thought and judgment.<br />
Most of us know the laugh-track trick and, if we really<br />
thought about it, we could resist the subliminal message.<br />
After all, we like to judge for ourselves whether something<br />
is humorous, to be the arbiter of our own reactions.<br />
But, other times, we let our defenses down, and we succumb<br />
to the temptation to just go along. If everyone else<br />
is laughing, it must be funny.<br />
So by now you must be asking, “What in tarnation<br />
does the laugh-track trick have to do with great legal<br />
brief writing?” Think about our use of precedents as a<br />
persuasive tool and the answer is clear. We (as persuaders)<br />
dangle in front of our readers (the “persuadees”)<br />
the idea that they should do “x” because others have<br />
done “x.” We are using social proof as a tool of legal persuasion.<br />
“X” is correct because others also think “x” is<br />
correct. Voilà! Of course, because we engage in a more<br />
sophisticated type of persuasion, directed at experienced<br />
“persuadees,” it is usually not enough for us to simply<br />
point to other cases and walk away victorious. We expect<br />
to analyze the precedents that we rely on, pulling them<br />
apart and drawing out the similarities between a representative<br />
case and the case under consideration. <strong>The</strong><br />
more similarities that we can show, the more persuasive<br />
the precedent will become. It is as if we are saying,<br />
“Look!” [waving case] “This case is just like the one you<br />
have to decide, and the judge in this case did just what<br />
we think you should do here.” <strong>The</strong> more you can support<br />
■ Linda Morkan is the chair of the appellate practice group in the Hartford, Connecticut,<br />
office of Robinson & Cole LLP. A longtime member of <strong>DRI</strong>’s Appellate Advocacy<br />
Committee, Ms. Morkan is also a member of the American Academy of Appellate<br />
Lawyers and was recently named Hartford’s “Appellate Lawyer of the Year.”<br />
78 ■ <strong>For</strong> <strong>The</strong> <strong>Defense</strong> ■ <strong>December</strong> <strong>2011</strong><br />
your premise that the two cases are “just alike,” the more<br />
likely you are to succeed.<br />
<strong>The</strong>re is no gainsaying how important precedents<br />
are in legal writing. Indeed, even in cases which involve<br />
statutory interpretation—when the text of a statute<br />
should be the primary area of focus—you will instead<br />
see briefs begin with a discussion of cases which have<br />
already interpreted that particular statutory provision.<br />
It is almost as if lawyers think that the most important<br />
information to impart to a judge is: “This has been done<br />
before, and this is how it was done.”<br />
This leads to a second observation about the importance<br />
of precedents. Whereas the theory of social proof<br />
explains why judges find precedents persuasive—both<br />
local and foreign—we all know that judges find cases<br />
decided in their home jurisdictions the most persuasive.<br />
Again, social science has an answer to explain this: We<br />
each have an innate desire to be consistent.<br />
<strong>The</strong> human desire for consistency is a powerful tool<br />
of influence. Once we have committed to a position, we<br />
have an almost overwhelming urge to portray that action<br />
as the “right” choice. People will go to great lengths<br />
to keep their thoughts consistent with what they have<br />
already decided. On a micro-level, this means that individuals<br />
have a deep-seated desire to take the same position<br />
that they have taken before. On a macro-level, this<br />
means that a court is impelled to the same conclusion<br />
that it has reached before. So, whether you knew it or<br />
not, you have been playing to a judge’s innate bias when<br />
you use precedents from his or her own home jurisdiction<br />
or, even better, from his or her own pen.<br />
Needless to say, attorneys can abuse these forms of<br />
subliminal persuasion. Using a precedent to lead a court<br />
to a conclusion that is not really justified by that precedent<br />
can lead to a less than ideal result, just as blind<br />
conformity can lead societies to commit or accept atrocities.<br />
What makes social proof so useful—its ease of reference—is<br />
also its Achilles’ heel.<br />
So it is most fortunate that, in most of our advocacy,<br />
we have attorneys on both sides of a dispute. If one lawyer<br />
tries to stretch a precedent beyond its natural elasticity,<br />
his or her opponent can warn a judge and keep that<br />
judge from too quickly succumbing to social proof. We<br />
also have experienced jurists, some might even say suspicious<br />
or cynical jurists, who are not easy marks and<br />
know that sometimes canned laughter is just masking a<br />
joke that isn’t really very funny.