Advocates reverse-engineer cases from the outcome their clients seek, selecting the most compelling facts and the most plausible legal channel to build the chain of reasoning that will lead to that outcome. This is result-selective reasoning. By contrast, judges are expected to come to the dispute without a personal agenda beyond the call of duty to reach the just legal outcome based on the facts, the law, and their interaction.
Advances in cognitive science and psychology have led to an arms race between advocates and judges of which judges. No doubt these advances have given advocates more sophisticated persuasive techniques. In response, the task of judges is to detect the use of these techniques and avoid being lured away from doing justice according to law.There are four quite distinct and burgeoning fields of research into the psychology of judging, which are based on empirical research that lays out the cognitive infirmities that affect human beings. These could be basic materials for effective advocacy.
The first, and the one with the broadest reach beyond judging, is based on the thought of Daniel Kahneman and Amos Tversky, who explore cognitive illusions or biases that affect human cognition generally, and, therefore, judicial cognition. Second, there is a growing area of research specifically on the effect of emotions on judging, particularly empathy. Third, the study of coherence-based reasoning seeks to describe the way judges and juries think. Fourth, there is research on the effect of narrative on judicial attention, understanding, and judging. These areas are not quite silos, but they have not yet coalesced into coherence.
This course will familiarize you with these areas of thought, using an excellent recent American text: Linda L. Berger and Kathryn Stanchi, Legal Persuasion: A Rhetorical Approach to the Science (Routledge, 2018). It is an operating manual to the judicial mind and ground-breaking. I would supplement with Canadian cases demonstrating the impact of the rhetorical techniques explored by Berger and Stanchi.
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? Do rule of law constraints work to ensure principled advocacy and adjudication?