Tuesday, October 28, 2008

Adverse Information

An opening brief should deal forthrightly and thoroughly with obvious objections. The court will think about undispelled objections instead of thinking about your arguments. Refuting opposing arguments early also improves an advocate’s credibility. Judges commonly complain that briefs fail to deal adequately with objections and other adverse material even after presentation by the other side. One reason is that a widely accepted perspective sometimes called the sponsorship theory holds that preempting an opponent by raising potential objections weakens persuasion. Sponsorship theory flourishes among trial attorneys, who apply it to juries rather than judges, to maintain that the fact finder will magnify any concessions based on their source.

Psychological theories can justify both sponsorship theory and its denial, sometimes called the scholarly approach, when applied to brief writing. Sponsorship theory invokes the recipient’s expectation that the advocate will present client-favorable arguments. Heightened expectations, a comparison-level concept — familiar to all who have suffered through Presidential-campaign coverage — cause adverse information to register as more adverse than when opposing counsel presents the same information. The prediction favoring preemptive presentation of adverse material comes from the theory of cognitive dissonance, which describes listeners as changing their beliefs and perceptions toward pragmatic consistency. Cognitive dissonance theory predicts judge or jury will understand adverse information the advocate supplies as less adverse because an advocate’s presentation of adverse information is inconsistent with recipient expectations. Comparison-level theory and cognitive dissonance theory predict opposite effects, both based on inconsistency between source and message. Which is stronger of these tendencies, triggered in recipients when an advocate offers adverse information preemptively? If the advocate is sufficiently skilled, preemption wins because the advocate can exploit cognitive dissonance but can only resist a disadvantageous comparison level.

Antipreemptivists sometimes clothe their view in the ethical cannon of zealous advocacy, but antipreemptivist motivation often comes from some advocates’ finding no merit in positions they oppose. Sometimes immersion in a case makes a client’s contentions appear self-evident, but trial attorneys also cultivate their absolute conviction favoring their client, because their self-certainty helps convey their conviction to na├»ve juries. Persuasive discourse benefits from different attitudes, depending on whether the recipient is judge or jury and whether the medium is speech or writing. Attorneys adapted to persuade juries do particularly well filing ghostwritten briefs when they communicate with judges in writing.

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