LLL IV: A view based on my practice and interview research

This post is the fourth (and final) in a series. The first post explains how I’ve excerpted these posts from one of my PhD prelim exams and introduces the questions I want to discuss. The second addresses a problem in legal theory—exemplary reasoning—and one with it—its failure to distinguish when it’s attempting to be explanatory and when normative. The third takes up the constitutive role of rhetoric in the law and the still-necessary role of logic. This post might make a lot more sense if you start with the earlier ones.

This final post in this series takes up questions based on my experiences as a practicing lawyer and law teacher and based on one qualitative interview. My experience as an attorney for a dozen years and as a teacher of legal writing for six years emphasizes the rhetorical nature of legal practice. We do not write a cease and desist letter in our office without considering the rhetorical impact that including or not including a particular claim or demand will have; that rhetorical analysis is also intertwined with a more formal analysis of potential legal impacts of the cease and desist letter. Legal writing and analysis textbooks make overt appeals to rhetorical principles. But in these contexts, few legal practitioners, theorists, students or teachers would choose to describe their activities as “rhetoric.”

I would make a concerted effort to divide legal theory into normative and explanatory branches, and pursue different strategies with regard to integrating rhetoric into each. I do not intend, as Walton (2011) worries, to claim the explanatory branch for the empirical ‘science’ of rhetoric and leave the normative branch to logic. I agree with Walton that rhetoric and logic in the law must be integrated, both in theory and in practice. Instead, I intend to use the clear division for purposes of exposing law’s “rhetorical underbelly.”

Legal theorists are bound by their own logical commitments to acknowledge well-structured empirical studies. I would thus like to expose the rhetorical side of jurisprudence by documenting it. I would focus more energy on cognitive methods (avoiding the use of the term “rhetoric” strategically). I’ve begun an effort in that direction. In fall 2012, I interviewed the former “permanent clerk” of a federal district court judge. I obtained the informant’s consent to interview her about the workings of the court as an institution, explaining that I wanted to understand the role of various factors in judicial decision-making. As the interview did not entail questions about the informant herself, no IRB approval was required for the interview.

According to my informant, judges are loath to discuss their processes for reaching decisions for at least three reasons. She claimed that judges usually don’t hint about which way they are leaning in the case until they give the clerk instructions about drafting the order, in other words, until the decision is made. However, some of her comments also suggested to me that the chambers provide an environment for candid discussions among the judges and their clerks, but that she would not reveal their nature or the level of detail. She cited three reasons for judges (and perhaps their clerks) being unwilling to expose their decision-making in situ. First, there is already a tendency among some in American culture to lack confidence in the decisions of courts. Judges don’t want to further fuel such distrust by exposing what is still a very ‘artful’ process. Second, judges operate in an environment that is largely transparent: all the documents that are used in making a decision appear on the court’s record (excepting evidence that is subject to protective order), and almost all the court’s proceedings are recorded. Generally, these records and proceedings are open to the public. As a result, there is an expectation among some that the judges will use only what is within the record in their decision-making. Any implication that they bring personal experiences or emotional reactions to bear can expose them to the problems identified in the first point. The third issue is also related to the first and second: Because so much of the court’s official business is transparent and open to the public, my informant speculates that judges want the spotlight off their activities in their chambers in order to preserve a “huddle privilege” with their clerks, an opportunity to be more open and candid in a job that usually does not permit these luxuries. It is this “huddle privilege” comment and similar ones that suggested to me that even my expert informant did not wish to share all she knew and had witnessed of judicial decision-making.

Consequently, I believe direct observations of judicial decision-making may be difficult to achieve. Judges just may not make themselves available to interviews, think-aloud protocols, discourse-based interviews, and direct observations of the court (whether styled as ethnographic or case studies); and the legal culture might consider as suspect observations of those judges who are “shamelessly exhibitionistic.” Though it appears unlikely that I will be able to obtain access in the near term to observe judges’ decision-making directly, it may be possible to take advantage of the practice that my expert informant calls “judicial meteorology.” According to her, when an attorney in a large firm is appearing before a judge for the first time, she will often circulate an email in the firm asking other attorneys who have been before the judge what to expect. My own experiences of preparing with other attorneys for oral arguments before judges confirms that the attorneys appearing before a judge invest considerable energy in predicting what the ‘weather’ will be like in the court. The law firms that appear before the court and their clients have a great deal at stake in the analogical decision-making in which the judge must necessarily engage. They therefore engage in very explicit, articulated efforts to understand and predict how the judge will react to arguments. In short, they make an effort to model the judge’s decision-making.

As a result of the prevalence of judicial meteorology, it may be possible to learn a great deal about judicial application of analogical reasoning based on observations in two contexts: First, case study research conducted with a small number of law firms (perhaps two or three), each on a different case, would permit me to assess some of the variety of techniques that practicing litigators use to predict the outcomes of judges’ analogical decision-making. All the methods discussed above—qualitative interviews, protocols, and observations—would be applicable to this ‘oblique’ inquiry into judicial decision-making. Second, this approach permits some degree of success assessment. Because the briefs and oral arguments of both sides of a case are open to the public, and because the judge issues a public decision and (usually) an opinion justifying it, the researcher can compare the predicted outcomes and rationales of decision with the actual outcomes and rationales of decision.

For the normative branch of legal theory, I think the appropriate approach should be to use the logical and dialectical tools favored by legal theorists to drive home the need to take account of time and place, accepting defeasible logic, and acknowledging that logical fallacies may be procedurally warranted. Perelman and Olbrechts-Tyteca (1969) began this process with their comprehensive review of rhetoric, with frequent references to legal practice. Douglas Walton has extended this work, particularly in terms of constructing argument schemes (Walton 2008; 2011). So, for example, Walton discusses the argument schema for expert testimony:

  • MAJOR PREMISE: Source E is an expert in subject domain S containing proposition A
  • MINOR PREMISE: E asserts that proposition A is true (false)
  • CONCLUSION: A is true (false)

(2011, p. 8). Walton acknowledges that this schema is not logically valid. Unlike Brewer (2006), however, Walton has no melt-down, but instead offers a set of critical questions (which look a great deal like rhetorical topoi) that can be used to evaluate this schema:

  • CQ1: Expertise Question. How credible is E as an expert source?
  • CQ2: Field Question. Is E an expert in the field that A is in?
  • CQ3: Opinion Question. What did E assert that implies A?
  • CQ4: Trustworthiness Question. Is E personally reliable as a source?
  • CQ5: Consistency Question. Is A consistent with what other experts assert?
  • CQ6: Backup Evidence Question. Is E’s assertion based on evidence?

Indeed, many of these questions parallel those that the Federal Rules of Evidence make applicable to all offers of testimony, not just experts. The challenge for offering a rhetorical sensibility to a normative theory of law is overcoming the fact that “rhetoric” is a dirty word among legal theorists. Walton (2011) has appropriated the term “dialectic” for legal logic. I would recommend applying that term to legal reasoning, including both its logical and rhetorical aspects.

Conclusion to this series of posts

All members of American society should have a basic understanding of the rhetorical culture of the law, the fact that it can never be guaranteed to be just in each individual case, but that it can be structured according to the circumstances of time and place (and the principles of rhetoric), to deliver results that are acceptable to the wise, the learned, and people in general.

Lawyers and judges should acknowledge that logic and rhetoric play complementary roles in legal reasoning and value each for what it brings. And critical theorists should continue being critical of the assumptions built into the legal system.

For my part, I’d like research to distinguish normative and explanatory legal theory and I’d like to see more candor regarding rhetoric in the former and more empirical research regarding rhetoric in the latter.


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