Legal briefs should rebut opposing arguments, but often trial attorneys handle opposition by reiterating or at best buttressing their affirmative cases. Since the skills for arguing and rebutting are probably identical—as shown by the interchangeability of attorneys experienced in suing or defending—weak rebuttals aren't due to unbalanced skills. The formulaic character of nominal rebuttals suggests attorneys don't fully understand their opponents' legal arguments. An illuminating explanation comes from the psychologist Daniel T. Gilbert's research on the unity of comprehension and belief, according to which understanding a text or utterance requires, minimally, its momentary acceptance as true.
Comprehension induces belief
Gilbert and his colleagues have corroborated a theory of what I call the unity of comprehension and belief :
- To understand any message, the recipient must suspend disbelief and accept the message as true.
- Unless the recipient rejects the message—by a subsequent conscious or unconscious decision—the recipient will continue believing.
These are momentous conclusions: psychologists had agreed with common sense, which says we can neutrally evaluate a contention and delay accepting or rejecting it. Gilbert's evidence comes from scientific experiments, but one rationale from evolutionary psychology helps clarify why it should be so: conceptual belief is an extension of perceptual belief, and we consider our perceptions true until we have reasons to doubt them.
False confidence impresses juries
Another theory from evolutionary psychology is needed to understand the importance of the unity of comprehension and belief for appellate and motion practice: the theory of self-deception, which the evolutionary biologist Robert Trivers sets out in his new book, The folly of fools: The logic of deceit and self-deception in human life (2011). People aren't objective about their own prospects; clients, for example, have excessively optimistic anticipations about the results of litigation. According to Trivers and evolutionary psychologists, humans evolved self-deception because it facilitated deceiving others, as in a bargaining process in which parties can bluff more effectively if they fool themselves too; the bluffing party "honestly" overvalues its claim.
Trial attorneys confident of the righteousness of their clients' causes are often more persuasive with juries, and true to theory, they often manifest a biased confidence in the cases they are prosecuting or defending. Regardless of whether they realize it, they commit to maintaining their confidence. Attorneys may think their confidence isn't threatened by strong arguments from opponents because, on the common-sense view—rejecting the unity of comprehension and belief—they needn't evaluate the argument, only find the best answer. Didn't law school teach them how to argue both sides of a question? But the unity of comprehension and belief bars the attorney from emerging unscathed from genuine argumentative engagement, and at some level, trial attorneys learn this. To understand the argument, they must believe the argument, at least temporarily, but once they believe, they're at risk for being unable to disbelieve it later. We aren't free to believe what we want, except by refusing to comprehend what we reject. People generally fail to understand attacks on their core beliefs, and attorneys are unlikely to understand arguments undermining their confidence.
False confidence creates ostriches
A publicized case of incompetent lawyering illustrates by providing a good example of a trial attorney’s incomprehension: the appellant’s reply brief failed to rebut dispositive case authority, and the appellant's attorney attained notoriety after Judge Richard A. Posner's opinion represented him pictorially as an ostrich. Judge Posner speculated that the attorney was forum shopping by avoiding mention of a panel he sought to avoid, an unlikely explanation, since the 7th Circuit has long had a bullet-proof system of random case assignment. Judge Posner might have unwittingly achieved his second purpose—besides denouncing the attorney's omission to warn other attorneys—pitching the efficiency of visual matter in briefs and opinions. The ostrich picture was a more plausible depiction than the verbal speculation, in that appellant’s attorney truly didn't believe the omitted case was relevant.
The attorney that Judge Posner ridiculed had served as trial attorney below. What saves legal disputation is that the advantages of self-deception pertain to oral communication, where observers, such as jurors, can detect the involuntary cues—facial, tonal, and postural—betraying the dissimulator. The importance of thoroughly comprehending an argument to refute it argues for a division of labor between talkers and writers.
