Perception and Persuasion in Legal Argumentation: Using Informal Fallacies and Cognitive Biases to Win the War of Words

By Clements, Cory S. | Brigham Young University Law Review, March 1, 2013 | Go to article overview

Perception and Persuasion in Legal Argumentation: Using Informal Fallacies and Cognitive Biases to Win the War of Words


Clements, Cory S., Brigham Young University Law Review


CONTENTS

I. INTRODUCTION 320

II. KEY CONCEPTS AND HISTORICAL BACKGROUND 325

A. Perception and Persuasion 325

1. Perception 325

2. Persuasion 327

3. The interaction between perception and persuasion 330

B. Informal Fallacies and Cognitive Biases 331

J. Informal fallacies 331

2. Cognitive biases 334

3. The connection between informal fallacies and cognitive biases 336

C. Background and Context: Sophists, Philosophers, and Lawyers 337

III. EYEWITNESS TESTIMONY, WRONGFUL CONVICTION, AND THE COURTS 341

A. Cognitive Psychologists and Legal Scholars on Eyewitness Testimony 341

B. Courts' Limited Role in Excluding Unreliable Testimony 343

J. Excluding opinion that lach a rational connection to actual perception 343

2. Excluding unreliable identifications due to suggestive circumstances 344

IV. CONNECTING THE LINKS BETWEEN SPECIFIC INFORMAL FALLACIES AND SPECIFIC COGNITIVE BIASES 349

A. Fallacy of Irrelevant Thesis and Bounded Awareness 349

B. Fallacy of Exclusion and Confirmation Bias 352

C. Fallacy of Style over Substance and the Framing Effect 354

D. Fallacy of Emotive or Loaded Language and Suggestibility 355

E. Poisoning the Well, the Straw Man, and Cognitive Dissonance 357

V. CONCLUSION 360

I. INTRODUCTION

When zealously advocating a client's position, the lawyer's ultimate goal is winning. To win, however, the lawyer must convince a judge or jury to accept the lawyer's (and reject opposing counsel's) position. The best type of advocate accomplishes this goal using various rhetorical techniques, attempting to manage other people's perceptions of such things as the facts, the lawyer's own theory of the case, the credibility of eyewitness testimony, the weaknesses of opposing counsel's claims, and the praiseworthiness of the lawyer's own client. By design, we have an adversary system. Roberto Aron and his colleagues characterize litigation quite deftly.

Litigation is not a philosophical discussion. Trial advocacy is always controversial. A trial is a judicial contest between lawyers where a given situation and set of facts are interpreted in various ways by the different parties' lawyers, each counsel trying to persuade the judge or jury that justice is on the side of the client for whom counsel is arguing.1

But how does the lawyer successfully convince the fact finder that the lawyer's (and not opposing counsel's) position is aligned with justice? Success inevitably boils down to persuasive legal argumentation.2 This is because "the advocate's [only] weapons in the courtroom battle are methods, tactics, and strategies, all of which have in common the ultimate goal of persuasion."3 When lawyers do battle in the courtroom, whichever warrior wages war while wisely wielding wittier words without waning will win. Thus, if the lawyer's ultimate goal is winning, the lawyer must master the art of persuasion. For the art of persuasion4 is intimately connected with the psyetiological process of perception. And perception is what convinces people whether to accept or reject the lawyer's argument.

In this Comment, I propose an account of legal argumentation that explains the relationship between mental processes that psychologists label cognitive biases5 and legal arguments that philosophers label informal fallacies.6 Cognitive biases are errors in our thinking and reasoning, which alter our perceptions. Informal fallacies are verbal or written arguments containing material flaws, which enhance their persuasiveness.7 I also describe the process of persuasion at play when the lawyer uses legal arguments that contain informal (material) fallacies. By using legal arguments that contain informal fallacies, the lawyer can play upon the listener's inherent cognitive biases to persuade the listener to see things the same way the lawyer does. When lawyers use these rhetorical techniques - whether before or during trial proceedings - they induce8 in most listeners erroneous perceptions that can, and often do, powerfully alter their listeners' beliefs. …

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