What Law Schools Can Do, Part I: Teach Persuasion

David Super

     The great majority of legal academics are appalled at the nation’s verdict last week on former President Donald Trump and the Republican Party.  Despair is natural, and the urge to withdraw is all too tempting.  Many of us enjoy sufficient privilege that we have the choice to abandon meaningful engagement with the nation’s problems and scholarly attention to the world as it is.  Tens of millions of people who stand to suffer under the new regime, however, lack any meaningful exit option. 

     For their sake, but also for our own, I hope we will take this as a signal to engage more, not less.  As it happens, law schools and legal academics are well-positioned to make crucial contributions to advancing justice in this country.  Moreover, much of what our country needs from us is entirely consistent with our roles as legal educators and with norms that law schools should serve, and advance inquiry by, faculty and students of all persuasions.  This is the first of a series of posts suggesting ways in which law teachers and law schools can effectively respond to the current crisis.

     This is the culmination of progressives’ long drift away from engaging in, or even valuing, effective persuasion.  We have developed numerous excuses for dismissing the need for persuasion.  We tell ourselves that most of the country agrees with us and that we only lose elections because of the Electoral College, or gerrymandering, or Citizens United, or whatever.  We proudly cite polling on issues where most of the electorate agrees with us while ignoring polling on other issues because those are “issues of principle”.  (Conservatives, by the way, play exactly the same game to claim broad public support while designating abortion and guns as “issues of principle” on which the public’s views are irrelevant.)  We dismiss the persuadability of most of those that do not support us:  a “basket of deplorables”, bitter people who “cling to guns or religion or antipathy toward people who aren't like them”, etc.  (This, too, has conservative echoes in Mitt Romney’s dismissal of 47% of the people as unpersuadable because they are unwilling to take responsibility for their lives.)  And we insist that persuading those that disagree with us is unnecessary because superior voter turnout, or demographic change, or some other pot of gold at the end of the electoral rainbow will be our deliverance.  Those arguments are exceedingly difficult to sustain after this election. 

     We also have become addicted to gimmicks, the political equivalents of get-rich-quick schemes.  We argue that if we just repeal the filibuster, or impeach Donald Trump (with no prospects of a conviction), or knock Donald Trump off the ballot over January 6, or convict him of felonies, or resuscitate the Voting Rights Act, or intimidate Senator Joe Manchin, or expand the Supreme Court, or hold an Article V convention, or something else, we will be fine.  Some of these expedients are downright dangerous; even the best of them likely could only help at the margins.  Had we recently expanded the Supreme Court, we might just have served up more seats for President Trump to fill.  This election demonstrates that if we cannot persuade significantly more voters to support progressives, no clever maneuvering will save us. 

     The ability to persuade is absolutely essential to a lawyers’ effectiveness, yet all too often it gets short shrift in law school curricula.  It is one of many disparate tasks heaped upon a “Legal Practice” or “Legal Research and Writing” course that commonly gets far too little attention from tenure-track faculty.  This courses and its instructors deserve far more attention and respect.  This should be quite natural in a legal academy that has become more open to insights from the social sciences, some of which hold valuable complementary expertise on persuasion. 

     The first step in improving law graduates’ persuasive skills is to teach them to value the subject at all.  That will take some doing, but it is possible.  Until relatively recently, most law students saw no need for courses in Legislation because they imagined they could simply stare at a statute and discern its meaning.  Similarly, I fear many students have inferred from the way many schools treat the Legal Practice/LRW course that persuasion does not require special study. 

     An alarming number of activists seem to believe they have no need to study persuasion but rather just “speak the truth.”  Some value “fighting” (a remarkably vague concept) over doing the things to maximize the chances of winning.  When urged to reconsider harsh statements that might alienate potentially persuadable decisionmakers (including swing voters), a common response is “but it’s true” – as if that was the only criteria for what an advocate should say.   

     Several basic elements of persuasion repeatedly are overlooked.  One is knowing one’s audience.  Many of our students will peruse the prior decisions of a judge before whom they are about to appear and try to avoid types of arguments that judge has condemned.  But did those ridiculing the malapropisms of George W. Bush consider how much they sounded like the condescending snobs that many intelligent but less-educated voters remember mocking them for similar mistakes?  That is not a helpful association, yet one that elite progressive activists continually court – only to be surprised when those same voters disregard our expert opinions about what is a danger to democracy or a threat to the economy. 

     More generally, all too many of progressives’ attempts at persuasion seem targeted on thoughtful, moderately conservative Main Street businesspeople.  This group, to be sure, broke the impasse to pass the great civil rights laws of the 1960s, eventually forced an end to the Vietnam War, and ushered Richard Nixon out of the White House.  We imagine, somewhat romantically, that this group has deep principles about this country’s values and will rally to the progressive side when those values are challenged.

     This group has grown remarkably quiet, however, over the past half century.  Its numbers have declined as our society has changed.  Many of those that remain joined the Democratic coalition decades ago, and most of those that are still Republican despite everything are not likely to switch now.  Highlighting how Republicans transgress that group’s norms therefore is not very effective.  Today’s swing voters are very different people with very different priorities – requiring very different arguments.  Continuing to craft arguments for this largely bygone group makes no more sense than trying to win constitutional cases with arguments that target Potter Stewart, Lewis Powell, and Sandra Day O’Connor.

     Another aspect of persuasion is realism about just how rapidly someone’s views can change how much.  No competent attorney would expect Justice Alito to vote to find a right to a guaranteed minimum income implicit in the Constitution.  Yet is it any more plausible to think that someone who is appalled by the mass murders and rapes of civilians on October 7 will give a thoughtful listen to someone praising Hamas?

     Persuasion also requires understanding the possibilities and limitations of the forum.  Students could easily infer from the standard law school curriculum that important decisions get made after full briefing and oral argument – or else in a seminar room after protracted and complex debate.  In politics, the dominant fora are the soundbite and the attack ad.  And when lobbying legislators or senior executive branch officials, success often depends on convincing them that they can effectively explain their actions in a soundbite and fend off any resulting attack ads. 

     All too often, progressive activists espouse positions that are sharply counter-intuitive to officials, journalists, and voters.  When pressed, they may provide a convoluted chain of reasoning heavily dependent on numerous facts unknown to non-specialists.  The fact that these activists believe they could win a protracted argument over the merits of their position is quite irrelevant because voters (and the journalists that influence voters) will almost never listen to a long-form defense of that position.  Being accustomed to writing motions and appellate briefs, I was shocked to discover that my “page limit” in Washington was three short bullet points.  And if any of those bullet points was subject to a rebuttal that the policymaker could not handle on their feet – such as one citing purported facts they would not know how to rebut – they would not only abandon the position I was pushing but refuse to take further meetings with me for the foreseeable future.  If a case cannot be made within the available attention span of the crucial decisionmakers, it has little practical value:  the argument must be either reformulated or dropped. 

     By rethinking the way we teach persuasion, law schools can both improve the practice-readiness of our graduates and better-equip those so inclined to effectively champion nobler values than those that prevailed in the last election.  This may require rethinking how we structure and present our Legal Practice/LRW courses – and the respect we show to those that teach them.  Teaching advocacy as brief-writing and formal oral arguments ignores many of the skills that matter most in practice.  When I taught Legal Practice, I included those traditional elements but also had students draft proposed orders, submit comments on a proposed rule, meet with a hypothetical agency’s reg-writer alongside advocates for competing interest groups, interview a (very difficult) client, and critique some (deeply problematic) advocacy in a mock administrative hearing.  I no longer teach Legal Practice, but I still make the first-year students in my Contracts-Torts course participate in a mock scheduling conference where they compete with five advocates for other groups to frame the issues in a case for the hypothetical judge who will try it. 

     Some very good law schools have some very weak Legal Practice courses.  That may make sense if one just regards those courses as remedial writing instruction, but most students arrive at any law school with only a rudimentary understanding of the art of persuasion.  Most law schools likely fail to teach systematically the wealth of knowledge amassed by Social Psychologists, Sociologists, Political Scientists, jury consultants, and others about how persuasion does and does not work.  For example, do students have any systematic body of learning on which to draw when deciding how to contend with an opponent who is mischaracterizing facts in an environment where one lacks the opportunity to try those facts formally?  These challenges might well merit an upper-level course.  Over time, we can hope that students will come to regard such a course as having similar importance to Legislation or Administrative Law. 

     @DavidASuper1