The Advantage Blog

Stop Telling the Judge What He or She Cannot Do!

April 7, 2018 | By |

I was a member of the graduate student admissions committee at the UW Communication Department, and we were meeting to rate and rank applications. There is no need to go into all the details, but as we were moving around the applicant “cards,” with their names and summaries of the qualities – stacking, ordering, and reordering – the process was moving pretty fast. I called for a halt, trying to assess the latest moves that were made. I was uncomfortable with it, but was trying to understand why. The Chair grew impatient and said “you have to give me an argument…” My retort was simple, if impolitic. I said “I don’t have to do sh**,” a comment met with chuckles by the other members of the committee, with except of the chairman.

I could feel the disinclination to support his positions and point of view. I was less interested in agreeing with him. We all continued to have a discussion and arrived at a unanimous agreement on the eventual order, but he had lost any motivation to advocate for himself or his position. He had lost an ally in his efforts to support a candidate who would support his research.

When pushed about what we must do, shouldn’t do, or cannot do, people react. So stop telling the judge what they cannot do in a decision. I have observed this both in court and in a hearing where I was taking part: the opposing counsel told the judge forcefully and without quarter that she could not decide in any other way but his. My eyebrows rose because, although I am not a lawyer, I was a former professor of communication and persuasion. My internal thought was, “Whoops. That was a mistake.” Why? Well, let’s take a quick and simple look at why.

There is a body of social science work in the psychological reactance framework, a body of work that focuses on the resistance to persuasion. This area of persuasion research notes the inherent human desire for autonomy, freedom, and independence. When there is a perceived threat to such intrinsic desires, the motivation to resist the message increases. This motivational resistance is enhanced when particularly forceful, intense, and absolute demands (restrictions of freedom of choice) are employed.

As a student of trial persuasion, often I have witnessed litigators telling the judge the law they must follow; that they have literally NO freedom to decide in any other manner; that they are powerless to find in any way contrary to that articulated in their advocacy. Perhaps such a strategy could be geared to a judge’s insecurity that their decision could be overturned in appeal. In my observational experience, most judges are confident in themselves. So, while there may be some institutional or procedural framework inherent in the legal system that could exert influence on a judge’s decision, a judge (dare I say it) is first and foremost a human, with psychological and emotional dispositions that will influence their decision-making process.

So, take care when you direct a judge. Don’t give them a human psychological motivation to find a way to prove you wrong – to show you, in essence, that there is a reasoned way to find against you.

The same argument, in essence, can be made, but with rhetorical sensitivity, acumen, and dexterity. Advance an argument that writes their decision for them; give them the roadmap; help them understand not what they must do, but what you hope they will arrive at based on the force of your logic, application/interpretation of the legal standards, and the particulars of the evidence. In short, be persuasive, not directive.

And consider the Italian diplomat who opined that, “Diplomacy is the art of letting someone else have your way.”

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