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. <strong>The</strong> 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.” <strong>The</strong> 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 <strong>DRI</strong>’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 ■ <strong>For</strong> <strong>The</strong> <strong>Defense</strong> ■ <strong>December</strong> <strong>2011</strong> your premise that the two cases are “just alike,” the more likely you are to succeed. <strong>The</strong>re 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. <strong>The</strong> 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.
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