Law in Contemporary Society
[There was no need to retain prior versions of this topic on the page, because all prior versions are available if you use the "Diffs" button. So I removed the first draft below and took note of your revision comment, which I discuss below.]

How to Persuade Shapers and Mechanists

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."

Logic and Propaganda

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."

It is by now well-established as a matter of empirical psychology that logic is inferior to propaganda in swaying many types of listeners. Edward Bernays' PR writings and their subsequent devastating use by Goebbels in fueling the Holocaust have brought home the truth to the legal profession: legal logic is a facade. To persuade, logic must be buttressed (or supplanted) by tools from non-legal disciplines.

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. With that said, the practical lawyer should always remain attentive to possibilities for arguing from a non-rationalist perspective. The profession may demand a fašade of logic, but the substance doesn't have to be.

Certain tactics are familiar and proven:

  • If they are proven, it might be helpful to say how you know that.

  • 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.

  • The specifics are at once too specific and too general. It would be more useful to offer a general principle ("people think about individual human beings differently than they think about organizations unless the organizations are relentlessly depicted as though they were people," which is an Arnoldian sentiment if ever there were one, leads to "present your client always as 'the little man'").

  • 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.

  • Literature and film are playing into a longer pre-literate history, right? Again you are being too specific and too general. The general principle is to cast your client in a role that elicits sympathy.

  • 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.

Techniques for the 21st Century

The above is obvious. But what should we do with this idea? What should illogical persuasion look like in the age of the Internet and beyond?

  • Surely much like it looked in the age before and before. What follows is again too specific, as though 2009 would last forever, and too general, in the sense that it's not about any specific future that might or might not arrive, but about the idea of escaping the need which the past imposes of being accurate. (See your own version note.)

  • 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.

  • Sometimes that elicits the sympathy of the decisionmaker, and sometimes it doesn't. Your better rule is the simpler and more general rule to take the side of the distinction between the old and the new favored by the party whose support you are seeking to gain.

  • Use the newest media to take your case to the public. Today it's Trash.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.

  • The reasons for using new media aren't primarily that they are cool. The reasons for using new media are: (1) you are looking to reach the people reachable in that way, primarily younger people; (2) you are trying to achieve the lowest possible course; or/and (3) you are trying to democratize your message, making it malleable, and hoping to benefit from remixing and reuse. If the users of those media use them because they consider them cool, or consider it to be cool to propagate your message using them, that's an audience motivation that explains your choice, but it's not your reason.

  • 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...

  • This is not about communications strategy, this is about the logistics of campaigning.

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.

  • This isn't really a conclusion to the essay that precedes it.

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r9 - 31 May 2017 - 01:54:10 - TyCarleton
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