So as promised, here are some nuggets from my AAAL conference in San Diego.
The first session included law professors from Marquette, University of Nevada, Indiana U. and BYU explaining how we make decisions.
First, vocabulary makes a difference. In experiments where people see an accident, and you describe the car "making contact" with the other versus "crashing into," the witness will think the car was going 10 mph slower.
Expectations affect what you see or believe. While we don't consciously think that we are affected by these expectations, we are. It's important to make your client likeable, so the decision is one the judge wants to make. If your client is a horrible murderer, then you can at least make the legal principle that you are espousing likeable.
Our brains "prime" – we channel information into existing mindsets. This means that the reader is leaping to conclusions at the very beginning of your brief. Forget the slow build; you have to make sure the reader is on track from the very first sentence. GIving our priming method of thought, we want to activitate the right existing schemas, use examples that fit the reader's world, and dampen the bad presumptions up front. You can't eliminate a group stereotype, but you can at least try to complicate it.
The lower down the court, the more the nuts and bolts of the laws and rules matter; it's when you get to supreme courts with discretionary powers that personal philosophies and social psychology come to the fore.
Statistically, incarcerations spike before judicial elections (in places unlike Maine, with judicial elections), as the judge, consciously or not, is trying to look hard on crime and criminals. When a judge is elected, he or she overurns precedent twice as much than when appointed, and overturning precedent decreases over time. This is because, the professors say, the judges are changing constituencies, from the electorate, to the other judges on the bench with them.
In sum, the law always matters a lot. In easy cases, it may be all that matters. In hard cases, which could go either way, then a judge, they say, is inclined to go the way that better fits his or her world view.
Notably, after a judge has written something down, that view is frozen. The judge will become the advocate for that view, even if it was tentative in his or her mind, and will be difficult to sway that view, because once the view is down in black and white, the judge, consciously or unconsciously, owns it.
Next – how reading a brief on screen is different from reading it on paper, and what to do about it.