How to Persuade Shapers and Mechanists (Second Draft)

• Be on the side of progress. Technological sophistication is now almost fetishized. There's a cultural preference for new gadgetry and ways of doing things -- even among the elderly. By characterizing your opposition as an impediment to progress, you garb your side in the positive feelings people have for innovation and an iteratively-improving technocratic society. To overturn old law, show that society has changed and the law must adapt.

• Use the newest media to take your case to the public. Today it's YouTube and Twitter. Tomorrow it could be anything. If you use the newest media, you are cooler than the other guy. And America loves cool -- James Dean could get away with murder in an American court (and O.J. did). Besides looking cool, you'll probably also reach more people, cheaper. But to do this, you have to remain plugged-in enough to know what the hot media is.

• Crowdsource dirty work. Need to code 40,000 documents by Monday? Let the Bangalore team handle it; or use non-lawyers and submit it to Mechanical Turk. The billable hour is dead. Victory is more important than running the clock. Therefore, use the latest expert systems tuned for your problems and embrace new technology to do routine work. That leaves more time for you to think and develop strategy. You're in a great position until Skynet decides to apply for a law license...

In sum: approach new technologies with an eye toward channeling them to persuasive uses. As this class advances in its career, society and technology will be changing at an ever-more-feverish pace. Those who adapt best will have an advantage in their practice -- and probably in their life in general.

-- By GavinSnyder - 27 Feb 2009

Illogical Persuasion (First Draft)

The Idea -- Logic Alone Can't Change Minds

On page 379 of The Folklore of Capitalism, Arnold, in principle no. 21, writes: "Public debate is necessarily only a method of giving unity and morale to organizations. It is ceremonial and designed to create enthusiasm, to increase faith and quiet doubt. It can have nothing to do with the actual practical analysis of facts."

Contemporary Examples

We can recognize a kernel of truth in the principle. Apart from Arnold's examples, three more seem particularly relevant to me:

• Before Jon Stewart single-handedly killed it, Crossfire was a popular political discussion show. Its entertainment value was in the way that the two hosts would shout over each other in a parody of a reasoned debate. The show's producers and the hosts knew that it was simply a pipe dream to convince the other. They couldn't even convince viewers, who were all partisan political junkies. The best they could hope for was to entertain by pumping up their own side.

• Presidential debates are notoriously decided by non-verbal factors or vacuous sound bites. When the nation saw Nixon sweat, the outcome was determined. Bentsen gutted Quayle with a cheap one-liner. And while the war prisoner paced and snarled "that one," Obama looked preternaturally unruffled. The actual intellectual content of the debates was thin and, when actually present, ignored by viewers in favor of the theatrical and the visceral.

• More topical to the legal profession, cases that involve a political issue (does that mean all cases?) are decided according to the judge's pre-existing beliefs. All of the most beautifully-reasoned amici in the world aren't going to be able to convince Justice Scalia to vote in favor of gay marriage. And this probably even applies to votes by fence-sitters. Justice Kennedy, like all people, instinctively forms opinions which are hard to dislodge. That he makes a pretense of waffling on the winds of briefed logic doesn't mean that he actually does so.

Arnold's Idea Should Alter How We Attempt to Persuade

The essence of Arnold's claim is that a participant in a public debate who appeals to the "thinking man" with logic and facts is a sucker. He can't change anyone's mind because people are only swayed by slogans, theater, music, personal religious experiences, groupthink, prods from their unconscious, and the like. As Napoleon said: "A man does not have himself killed for a half-pence a day or for a petty distinction. You must speak to the soul in order to electrify him."

Nobody is Immune

But couldn't there be someone out there, perhaps living on a deserted island in an American protectorate in the Pacific, who really hasn't made up his mind yet? Who hasn't heard "what's good for Wall Street is good for Main Street" or "from each according to his abilities, to each according to his needs"? Maybe he thinks of himself as a rational man. Maybe he's also colorblind, tone deaf, and autistic. Maybe this pathetic gimp of a thinking man, this wretched caricature of an informed voter, maybe he would be receptive to logic. Even if he was, he would be even more vulnerable to an argument that touched his viscera while still appearing to appeal to logic.

What Can We Do With This Idea?

Lawyers Have to Pretend to Focus on Logic

As lawyers, we are going to have to work within certain societal constraints. When writing legal documents, traditional form must be observed. There must be an attempt to argue in a rational, logical manner because that is what is expected by judges, partners, and the profession at large. It may be acceptable at closing arguments to the jury to abandon legalistic arguments and go straight for the heartstrings, but to get there, logical reasoning needs to be presented to satisfy the protocols of the law.

But Logic Can be Combined With Other Techniques

Given that, how can we, as lawyers, argue effectively? Here are some suggestions – no doubt amateurish or obvious – to craft legal arguments that actually have a chance of convincing the undecided or even the opposed.

• Cite the human impact on your client. In describing injuries, layer on the adjectives. Humanize your client by mentioning personal details, while dehumanizing the other side by characterizing them as a shadowy "other." If your client is a corporation or organization, individualize the impact by jobs lost or by particular people affected by the litigation.

• Cast your client as the oppressed, and the opponent as the oppressor. This plugs in to a long tradition in literature and film where the oppressed are the good guys. Make your client into Rob Roy, Robin Hood, Martin Luther, Martin Luther King, or Spartacus. Make the other guy into Captain Bligh, Nero, or Ebenezer Scrooge. Always shade facts to show that your client has no power and is at the mercy of the opponent. Thus picking your side will only be a matter of elementary "fairness." Appear scrupulous, and give the other side dirty hands.

• Create compelling spectacles. This is Law 37 of the 48 Laws of Power, but seems appropriate in a legal persuasive context as well. Think OJ and the glove. Use victim impact statement videos with an orchestrated soundtrack. Arrange dramatic witness questions. Always show evidence rather than merely describing it. Get your own witnesses to cry on the stand.

• Use symbolism, allegory, and metaphor. Every comparison is inexact. But people like comparisons because it gives them the feeling of a more full understanding of the topic. Exploit the human weakness for comparisons by proffering analogies that are favorable to your side. If the issue is technical, appear to simplify it by analogy, but also use the opportunity to shade key facts in your favor.

• I've cleaned up your markup. Using extra HTML makes things harder for other people to edit, and makes it harder for people to reskin the wiki if they prefer a different presentation. Take a moment to learn the TextFormattingRules and look at GoodStyle.

• There's a sort of "golly gee whiz" quality about this essay, as though it were 1923 and Edward Bernays had just published Crystalizing Public Opinion. We've had occasion to observe before how much at sea one is left in understanding the 20th century without a reasonably good working knowledge of Freud. Understanding PR and propaganda without Freud is impossible, because Bernays built our modern understanding of public opinion engineering on that base, and lawyers either consciously or unconsciously practice PR all the time, as you suggest. But the essay assumes all of that away, as though Arnold weren't himself breathing this atmosphere by 1937, and we weren't very much further down the "hidden persuaders" road. Strengthening the essay means dealing, at least by lip service, with the realities of the relation between public relations theory and legal practice in the age of mass communications.