For The Defense, December 2011 - DRI Today

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