The purpose of this Article is to enhance knowledge of effective persuasive legal writing by taking the exploration in a somewhat different direction from the traditional approaches. This Article argues that it is critical for persuasive writers to study the existing social-science data about human decisionmaking. Trial lawyers have taken serious steps to study and probe social science for ideas about how to persuade (or pick) juries. Yet, decades after Jerome Frank reminded us that judges, like juries, are human, appellate lawyers have been slow to follow their trial brethren in the pursuit of scientific data about what persuades people.
Instead, the study of persuasive writing has been dominated by a kind of "armchair psychology"-a set of conventions and practices, handed down from lawyer to lawyer, developed largely from instinct and speculation. By and large, the information available to students and lawyers about persuasive legal writing reproduces these conventions and practices without analysis or critique, and without taking stock of the growing body of research from other disciplines that would provide some evidence about whether the conventional wisdom is an accurate account of human decisionmaking.
2006 Mich. State L. Rev. 411 (2006).
Stanchi, Kathryn M., "The Science of Persuasion: An Initial Exploration" (2006). Scholarly Works. 1244.