Investigating persuasive processes in legal discourse in real time: Cognitive biases and rhetorical strategy in appeal court briefs

Abstract

This article reports findings from an exploratory think‐aloud protocol study of reading, writing, and persuasive processes in legal discourse during an actual state appellate court case. A special goal of the study is to examine the methodological feasibility of “matching” advocates’ think‐aloud protocol segments while composing their briefs with the precisely corresponding think‐aloud protocol segments of court readers during their subsequent process of evaluation and decision. Drawing upon these matched writer‐reader protocols as well as textual data, the study discusses three aspects of advocates’ use of persuasive techniques in written appeal briefs: (1) how cognitive biases may develop in appellate brief writers, (2) how these biases may affect their generation and strategic assessment of persuasive techniques, and (3) how court experts (appellate court clerks) may react to these techniques upon initial and subsequent encounters. The persuasive techniques focused on are (1) explicit refutations combined with concessions versus insinuations, and (2) one‐sided versus two‐sided case analysis.