This Article takes the first step in thinking about where good advocacy should draw the line between zeal and coercion. Legal advocates differ about how to navigate that line.' Is the best service to the client to be found in the most aggressive, strongest, hard-line approach? Or is a more tempered, reasonable approach most likely to produce the best results?
This Article looks at cognitive science for guidance on this question. One cognitive process that seems to be integral to tone is cognitive dissonance, a concept I will explain in Part II. I then take a close look at two types of advocacy strategies that exemplify the conflict between the hardline and tempered approaches to advocacy. The first advocacy strategy, addressed in Part III, focuses on how to deal with arguments and information that undermine your position. Is it best to sound like you believe your case to be ideal and that contrary arguments are wholly without merit or even spurious? Or is it best to acknowledge that there are possible reasonable counterviews while still arguing that your position has greater merit?
The second advocacy strategy, addressed in Part IV, is how to approach a controversial rule or premise for which you are advocating. Is the best approach to push early and hard in support of the rule, or to ease the reader into the controversial point by taking her through a step-by-step thought process that guides her to the controversial point?
The bottom line is that in both rhetorical situations, cognitive dissonance supports an advocacy approach that, while still strong in pursuit of a favorable outcome, appears more gradual, objective, and reasonable. In other words, it is often advisable for lawyers to present arguments in a way that appears to be reasonable, measured, and objective.
22 J.L. & Pub. Pol'y 93 (2013).
Stanchi, Kathryn M., "What Cognitive Dissonance Tells Us About Tone in Persuasion" (2013). Scholarly Works. 1248.