This course introduces the use of rhetorical techniques in advocacy, bearing in mind the core orientations of judges, advances in cognitive science and psychology, the use of narrative, the margins of manoeuvre open to judges in our legal system, and the constraints imposed by the rule of law and by the modes of judicial responsibility.
Advances in cognitive science and psychology have led to more sophisticated persuasive techniques. In response, the task of judges is to detect the use of these rhetorical techniques and avoid being lured away from doing justice according to law.
This course will familiarize students with these areas of thought, using an excellent and short text: Linda L. Berger and Kathryn Stanchi, Legal Persuasion: A Rhetorical Approach to the Science (Routledge, 2018), supplemented by excerpts form relevant articles and cases.
To these techniques is added the filter of ethics – judicial and lawyerly. How do judges and lawyers meet their obligations, in the course of a lawsuit, to first, do no harm; then, do the right thing, for the right reason, in the right way, at the right time, and in the right words, while resisting the lure of cognitive biases and personal prejudices? Do rule of law constraints work to ensure principled advocacy and adjudication?
By the end of the course, students will be familiar with and competent in identifying the use of the rhetorical techniques in decided cases, and in developing strategies for their use in advocacy within the constraints imposed by a good understanding of the judicial function and the rule of law.
Method of Evaluation:
1. Research paper 7000-7500 words - 80 %
2. Class presentation of the prospectus for the research paper - 10%
3. Class participation - 10%
In the research paper you will work through one or more cases decided by the Supreme Court of Canada or a Canadian appellate court using and commenting on the use by advocates or judges of the rhetorical techniques described by Berger and Stanchi in their text, and the possible presence of cognitive biases. Alternatively, you can work through one or more cases decided by the Supreme Court of Canada or a Canadian appellate court using the analytical framework of coherence-based reasoning developed by Dan Simon in his article, “A Psychological Model of Judicial Decision Making” (1998) 30 Rutgers Law Journal 1.
The prospectus for the paper must be approved by me. It is to be 1-2 pages in length, and will describe the proposed research and the sources, and sketch out the argument. It must be submitted no later than 11:59 PM EST * date October 7, 2025. Papers will be accepted until Monday, December 1, 2025 at 3:30 PM.