Arguments in the legal context are often perceived as successful when they are logical, well-reasoned, and rational. But there are often other elements a lawyer can focus on to construct a successful argument and persuade a factfinder. Arguments in the legal context are often perceived as successful when they are logical, well-reasoned, and rational. But there are often other elements a lawyer can focus on to construct a successful argument and persuade a factfinder.
Harvard law lecturer Steven Stark illustrates this in his book Writing To Win: The Legal Writer, by identifying six factors a lawyer can use to make their idea stick, which I interpret as crafting a compelling argument. They include the following: (1) Simplicity; (2) Unexpectedness; (3) Concreteness; (4) Credibility; (5) Emotions; and (6) Stories. While factors (3), (4) and, (6) speak to the more traditional methods of persuasion—logical and rationality—I’d like to focus on (5)—emotion—in this blog post. In particular, I want to identify how a litigator can not only use emotional arguments to persuade a factfinder, but also emotional evidence, which can induce decision-making in a more subtle way.
But first, it’s worth noting that the idea of appealing to the emotions of a factfinder is hardly novel, and traces back to Ancient Greece with discussion coming from Aristotle on the topic. More recently, Supreme Court Justice William O. Douglas, speaking of Chief Justice Hughes, said:
[He] made a statement to me which at the time was shattering but which over the years turned out to be true: “Justice Douglas, you must remember one thing. At the constitutional level where we work, ninety percent of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections.”
Now, I recognize that few of us are involved in the constitutional sphere, and even fewer will ever submit arguments before the Supreme Court, but inserting emotional appeals at the trial level and elsewhere is still a valuable skill in any lawyer’s arsenal. David Binder and Paul Bergman recognize this in their classic text on Fact Investigation, devoting entire discussions to emotional evidence.
Emotional Evidence Defined And Illustrated
Binder and Bergman define emotional evidence in the following way: “[This] evidence is to some degree psychological; it acts on the heart as well as on the mind. It may cause a factfinder to react emotionally in favor of the good [guys] or against the bad [guys] to reach a result felt to be morally, not merely legally justified.” Accordingly, the authors advise that when conducting fact investigation and constructing arguments, it is wise to keep a look out for evidence that can “act on the heart as well as on the mind.”
Further, marshalling emotional evidence will help mold your case theory and present case themes (e.g., The Plaintiff seeks to take advantage of her own wrong) in a more colorful shade. This type of evidence can also have a more subtle effect: it can sneakily influence the factfinder to dislike a certain actor in litigation, even though the evidence might be seemingly unconnected to the substantive legal issues.
Binder and Berman present a great example of this subtleness in their text, wherein they offer a dialogue between a witness and lawyer taking place in a hypothetical trial. In the hypothetical, the Plaintiff, a general contractor, has sued the Defendant, a subcontractor, for breach of contract after the Defendant failed to perform an electrical job on Plaintiff’s construction project. During trial, one of the witnesses for the Defendant is on the stand and the Defense attorney elicits testimony that goes to mitigation of damages—i.e., whether the Plaintiff adequately made an effort to find a replacement for the job the Defendant purportedly failed to perform. In this dialogue, the Defense attorney asks the witness about an alternative subcontractor, who the witness had previously spoken with the Plaintiff about. And during this conversation, the witness recommended that the Plaintiff hire the subcontractor for the job.
The dialogue also reveals that this alternative subcontractor, while competent, was going through personal issues at the time. Her father had recently died in a automobile accident, while her mother sustained a serious injury. In light of this accident, the witness testifies that she told the Plaintiff that the subcontractor could really use the work. Following, the attorney asks the witness what the Plaintiff said upon the suggestion that he hire this alternative subcontractor. This is when the emotional evidence comes in: “He said that he knew [the subcontractor], and that she did good work, but that he just didn’t want to get involved with someone who was having all those personal problems.” Thus, with one simple sentence, this witness casts a shadow of disrepute over the Plaintiff. And while this statement is callous at worst and insensitive at best, it is certain that at least some judges or jurors will now look upon the Plaintiff as a cold-hearted individual, ever decreasing the chance they will find in his favor. Alas, the value of emotional evidence.
This illustration is especially telling because the Defendant’s statement does not have any direct bearing on the legal issue in the case. That is, his unwillingness to hire the disaster-struck subcontractor does not negate whether he failed to mitigate his damages. But notwithstanding this fact, this unrelated evidence may end up accomplishing the exact same thing as evidence affirmatively showing a failure to mitigate. And what’s more, a factfinder reaching its pro-Defendant conclusion will likely claim this decision is fully supported by all the logic and non-emotional evidence that could be considered in this case. When in fact, it is really the emotionally charged evidence that is “supply[ing] the reasons for [the factfinders] predilections,” as Chief Justice Hughes explained was all too common in adjudication. Finally, recent research has confirmed that emotional evidence that does not logically provide evidence of the substantive legal elements at issue.
A Critique On Emotional Evidence From The Field of Informal Logic
While emotional evidence is indeed effective for the reasons mentioned above, it is not without its critics. These individuals might assert that legal argumentation should be driven by rationality and logic, not evidence that spikes our emotions and creates biases. Indeed, there a bevy of Rules of Evidence that have been adopted by the Legislature in order to prevent these types of risks—e.g., the bar on character evidence.
Further, these types of arguments to emotion have been deemed fallacious by logicians and thus at times improper in argumentation. One might consider an appeal to emotion, by way of argument or evidence, to be an argumentum ad misericodiram (an appeal to pity). This informal fallacy asks the factfinder to accept an argument not because of its validity, but because of the speaker’s piteous circumstances. While this fallacy is not of the sort illustrated by Binder and Bergman, as the only piteous individual was not a party to the case, its application is seen often in legal argumentation. This is especially so in criminal sentencing or when equitable relief is sought.
The other relevant fallacy when invoking emotional evidence is the argumentum ad populum. This argument “attempts to establish its conclusion by associating the conclusion with values the speaker’s audience holds dear,” says professor Kevin W. Saunders in his law review article on informal fallacies. This fallacy is akin to the one used in Binder and Bergman’s hypothetical, as the examining lawyer might now attempt to subtly impose a value-laden conclusion upon the factfinder. That is, individuals who are not willing to help others in need do not mitigate their damages in a way that should allow them to recover maximal compensation under the law. While the conclusion reached from this premise does not follow inferentially, the fact that the values involved are lofty might persuade a heartfelt factfinder to accept it nonetheless.
Accordingly, these types of informal fallacies should only be accepted in certain circumstances. The argumentum ad misericodiriam should only be permitted when the question involves equities, which allows the court discretion to consider fairness. And as for the argumentum ad populum, it should only be allowable when the argument relates to values that are strongly held in society—Griswold v. Connecticut and its recognition of privacy in contraception, as an important societal value, could be an example of this.
Alternatively, when the question under consideration is not equitable and a purely factual or legal issue, an appeal to pity should be irrelevant, as it fallaciously redirects attention away from the relevant facts and law. Similarly, when an argument to society’s values bears no legitimate relationship between the debate and those values, it is also a fallacy. In other words, when facts or evidence bear no connection to the legal dispute at issue, it should not be permitted. Note, these considerations will often be analyzed in the context of a Federal Rule of Evidence 403 balancing test, where one side will argue that the probative value of the evidence is substantially outweighed by prejudice to the party.
Whether emotional evidence is effective because it overtly influences jurors to act in a way consistent with that evidence or because it influences the subconscious minds of the jurors to rule in a certain way, it can have a profound effect on litigation. And because creative lawyering will frequently find a legal window through which to introduce emotional evidence, a litigator should be vigilant for its presence.
Upon discovering such evidence, like that introduced in the hypothetical, or, let’s say, the reprehensible aspects of a defendant–employer’s business (toxic waste disposal), it is wise to construct arguments to either permit or disallow that type of evidence. A litigator must ascertain whether it is truly irrelevant or if it has some tendency in reason to prove or disprove either a disputed substantive issue or the credibility of a witness. If it does not, the party negatively impacted by the evidence should attempt block its submission into evidence, so as to avoid fallacious arguments and unfair bias—no matter how difficult this might be.
For a more in depth discussion on emotional evidence, check out this law review article: The Emotional Juror, by Todd E. Pettys.