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Sunday, August 12, 2012

Deserving credulity

Last month Errol Morris, the filmmaker and high-quality American responsible for both Vernon, Florida, and the Miller "High Life" ad campaign, conducted an experiment about the human response to authority.  With the help of an expert statistician, he established to a greater than 99% certainty that, among Web readers of the New York Times, there is a correlation between

(1) the credibility granted to a proposition; and

(2) the font in which it is printed.  

(Baskerville beats Comic Sans, of course, but it also beats stately Garamond and Times New Roman by a significant margin.)  

Superficialities matter -- typefaces, cover letters, hairstyles, likeability.  For those of us (law students) entering a profession of persuasion, this is distressing.  We would like to believe that as adults our credulity is triggered only by reliable markers of truth, and that superficialities make no difference to our judgment.  This may in fact (for all science has proven) be mostly true of well-trained attorneys and judges.  

But the legal profession ignores the untrained mind (and the superficial part of the trained mind) at its peril.  When the outcome of a case hinges on a factual dispute, an untrained mind -- the juror's -- decides the result.  (In addition, yet more distressingly, the mind deciding where your article will be published is no more than two-thirds trained.)  

The job of rhetoric is to coopt the habits of the untrained mind, or else to train it.

The fact that superficialities matter is not news to those of us with significant experience in education.  The teacher must know his or her audience, and know which superficialities will best trigger its energy and curiosity.  Indeed, in teaching nothing is more important than knowing one's audience -- except, perhaps, knowing exactly how one would like to change it.  

The same is true of persuasion.  And yet almost none of the law-school curriculum focuses on the thought processes of "finders of fact," and the features of a plan to guide those processes.  (We at the journal have received a thrilling article on this topic, the argument of which I hope to share with you with the author's permission.)

To remedy the law professoriate's general blind spot toward juries (and toward the superficial part of every decision-maker's mind), I am spending a good bit of my time in law school developing trial "lesson plans."  This piece of my training goes on in the context of the Cleveland-Marshall trial-advocacy team.  In the classroom and the library, we focus on what persuades judges; in the school's state-of-the-art mock trial courtroom, my teammates and I focus on what persuades juries.  This includes superficialities.

Because jurors, like students, have their credulity triggered in certain ways, an attorney must have a plan tailored to its audience.  Specifically:  to maximize the chance of a favorable jury verdict, trial advocates must strike a balance between two strategies.  In some areas, a trial strategy should conform to the layperson's learned habits of decision-making; in others, it must help each juror unlearn those habits.  

Unlearning is very, very hard to create -- as is shown, for example, by my experience so far blogging this month.  I presented myself last week with no authority except that of a Submissions Editor, put forth novel and entangled propositions, and scrambled basic constitutional facts (amendment numbers).  As teachers of clear thinking (which is also to say, clear writing), the blawg's readers came down on me -- that familiar thing, a confused and arrogant law student -- like a ton of bricks.

In case you're just joining us, one of my initial posts stirred up a good bit of discussion with two naive propositions:  (1) the Constitution sets a framework for targeted drone strikes against probable terrorists; and, further, (2) the Fifth Amendment requires the involvement of a jury in the deployment of Hellfire missiles against single identified individuals.  Unsupported though the first proposition is, the second seems compelling to me for a number of philosophical and policy reasons.

One commenter pointed out disapprovingly that in extending the Fifth Amendment to (terrorist) conspirators outside US borders, I was merely "playing with levels of generality."  This is true.  But in itself that doesn't make the approach illegitimate.  In fact, as I and another commenter pointed out, monkeying with levels of generality has a pretty distinguished pedigree.  As Justice Scalia put it in 1987 (in a passage brought to my attention in a superb article by Prof. Banner), choosing a level of generality is unavoidable, even though it is "essentially a policy judgment, and there is no scientific or analytic demonstration of the right answer." United States v. Stanley, 483 U.S. 669, 681 (discussing "the varying levels of generality at which one may apply 'special factors' analysis" under the Feres doctrine).  

More significantly, however, altering the level of generality is a crucial trial strategy.  It is a skill we should learn in law school (and one I failed to apply properly in my post).

In their trial manual Reptile, David Ball and Don Keenan give the example of an unsympathetic med-mal plaintiff who had been harmed in a freak accident involving an overheating surgical implement.  The device had never overheated before in hundreds of thousands of uses -- but it was susceptible to overheating, according to an internal memo, and the fix would have been virtually free.  The lawyer's technique, atypically, was not to focus on the particular plaintiff, but to generalize and talk about the type of mistake that had occurred.  A costless fix not undertaken despite a clear warning:  what would be the result if every entity made choices like that?  By making the case more general than its own facts, the plaintiff's attorney gave the jury an altered framework that made possible a large recovery for the plaintiff.

The opposite technique is necessary in the criminal-defense context -- when the state seeks to harm people for what are, generally speaking, good reasons.  With the procedural requirement of a jury, the Constitution refuses to allow generality to govern such decisions.  The court is not allowed to ask, "What if we let all indicted people go?" but rather "Do you, the jury, twelve particular untrained people, see this defendant as guilty beyond a reasonable doubt?"  It's the judge's job to remove judicial generalizing ("I've seen cases like this dozens of times") from the equation, and it's the defense attorney's job to insist on particularity, and help the jury unlearn its own generalizing instincts.

Can or should this principle of particularized judgment be, in turn, generalized to those targeted overseas as terrorists?  I think the question is worth asking, but there are many thresholds barring the path of asking it effectively.

To raise this question properly, I should have sought a way to help my audience -- law professors -- unlearn the standard habits of generalization that govern these two key discourses:  constitutional law and anti-terrorism policy.  Without particularity as a premise, there is no individual with rights at the heart of the question.  Since I failed to change the framework, my textual argument stood no chance.  It was ignored, as it deserved, because I had not done the rhetorical work of tailoring it to its audience.

I want to emphasize, however, that this is now becoming very slippery idea, this concept of 'deserving' more attention.  Does a writer who chooses what he or she knows to be a more authoritative font 'deserve' more credibility?  What about an attorney who chooses a particularly fetching tie or outfit, or a Southern drawl, or a friendly tone of voice?  What if all these questions were focus-grouped and the right answers expensively discerned?  Would the optimally packaged attorney deserve the credibility he was assigned?

Surely these are superficial matters -- but we are kidding ourselves if we think judgment is blind to them.  The evidence to the contrary is all around us, sometimes statistical and sometimes not.  In a profession centered on contestation between reasonable people, no single definition of "desert" can possibly be correct; so in law school I am trying to develop facility with all of them.

Posted by Jim von der Heydt on August 12, 2012 at 05:47 PM | Permalink


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