Has anyone else wondered why purveyors of advice, such as this writer, foster overconcern with behavioral trivia that alienate judges? Consider the idea that briefs should be carefully edited to avoid typographical errors, which make a bad impression on judges surely disproportionate to their communicative significance. Doesn't spending hours to find a handful of typographical errors in a long brief waste resources, whether the time is your own, or your ghostwriter's time is your money? How can Justice Scalia calmly advise attorneys to laugh at all of a judge's jokes, instead of demanding that judges stop harboring these self-aggrandizing expectations? What becomes of the judge's duty to avoid biased adjudication? That the judge should proactively counteract the biasing effects might seem completely reasonable, and judges do insufficiently try to understand their biases and eliminate them to the extent possible. Even more, attorneys often go too far in efforts to gain a judge's good will, as by needlessly conceding points in oral argument to appear cooperative. But even the most just of justices cannot eliminate their automatic extralegal reactions.
The popularization of persuasion research confuses practitioners. A classic in the social-psychological literature of persuasion is Robert B. Cialdini's book Influence: A New Psychology of Modern Persuasion, in which the relevant research described, followed by the author's common-sense suggestions on countering exploitive techniques, as though insight into the persuasive mechanism provides a direct route to avoiding all irrational persuasion. Only recent research delivered the most important fact for judges about persuasion and its resistance — deliberately compensating for unconscious bias overshoots its mark. (T.D. Wilson, & N. Brekke (1994). "Mental contamination and mental correction: Unwanted influences on judgments and evaluations." Psychological Bulletin, 116, 117-142.) To fear arguing your position forcefully is usually misplaced because irrational anger, sustained by a conscious stream of thought, is a force attorneys rightfully and realistically expect a judge to tame. Inferior in importance only to honesty and civic courage, temper control is one of the cardinal virtues of the good judge. (See Solum, Virtue Jurisprudence: A Virtue-Centered Theory of Judging (2003) 34 Metaphilosophy 178, 187.) But the judge can counteract subtle unconscious reactions only by bending conception against perception. But volitional efforts overcompensate in greater, opposite bias.
Perhaps most decisionmakers, including judges, know this result intuitively, since overcompensation for bias isn't the usual response to persuasive communication. You occasionally can observe overcompensation in naive judges when an attorney's courtroom performance is egregiously incompetent. The conclusion isn't one I prefer, but candor requires it: when you have a case that borders on the frivolous, you may do best hoping for overcompensation and choosing an incompetent ghostwriter.
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