Friday, January 19, 2018

Going Negative as a Tool of Persuasion

Using negative themes in your writing may be beneficial if you have sympathetic facts on your side. Conversely, positive themes are likely to direct the court’s focus to the legal issues. Those are some of the conclusions reached by University of Wyoming College of Law Professor Kenneth Chestek and set forth in a paper released on SSRN on Tuesday, April 18, 2017, and appearing in Volume 14 of the Legal Communication & Rhetoric: JALWD.

The paper, Fear and Loathing in Persuasive Writing: An Empirical Study of the Effects of Negativity Bias, details the results of an “18-month long empirical study . . . investigating the power of negative themes in written advocacy.” The study involved submitting nine different versions of excerpts from summary judgment briefs in a fictitious case to over 150 sitting judges. The test case pitted a small mom-and-pop furnace manufacturer against the United States government. The brief excerpts submitted to the judges included preliminary statements with neutral, positive, or negative themes.

In summarizing his findings, Chesnek, also a co-author of Your Client’s Story: Persuasive Legal Writing (affiliate link), notes that:

Perhaps unsurprisingly, the bottom line findings are complex. In some situations, negative themes seem to be very important in priming a reader to disfavor the opposing party; in other situations negative themes backfire. For example, a negative theme seems to focus the judge’s attention on the facts of the case, while a positive theme tends to focus the judge’s attention on the law. Also, a negative theme might help a weaker party attack a large, more powerful adversary, but when the more powerful adversary uses a negative theme, the judge might instead be inclined to protect the weaker party.

Chesnek also emphasizes the persuasive impact a strong preliminary statement can have in framing the way the court views the case.

The article is worth a look and serves as a good reminder about the importance of making a powerful first impression on your reader. The insights into when negative and positive themes can be used in brief writing to emphasize facts or law are also very useful and are worth considering.


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The statements and views expressed in this posting are my own and do not reflect those of my law firm. They are intended for general informational purposes only and do not constitute legal advice or a legal opinion.

photo credit: weiss_paarz_photos Gavel and Hospital Chart – Hospital – Law via photopin (license)


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