Moral Emotions and Persuasion
Yesterday the New York Times ran a fascinating column from David Brooks on the concept of "moral emotions." Citing recent studies by neuroscientists and others, the column suggests that the moral reasoning we learn in philosophy classes is merely an "aesthetic" justification for instinctive convictions we have about right and wrong. In the same way a bad smell repels, moral error repels. We know beauty when we see it; so, too, with moral goodness. Moral decisions, Brooks suggests, are driven by emotion.
Trial lawyers should familiarize themselves with the research Brooks cites. It matters to our profession, though I question whether it will change how we argue cases. Skilled advocates know, and have known for centuries, that a key component or persuasion is pathos. In speaking to juries, we always appeal to emotions. As Abraham Lincoln said during his trial lawyer days, to persuade a person, one first has to capture the heart. If a case concerns a traffic accident, we describe the wreckage in vivid detail or speak movingly of the plaintiff's struggle to walk afterwards. This is common, effective if not overwrought, and often wins verdicts.
But some lawyers concentrate primarily on logos. If the research Brooks cites stands the test of time, logic in legal argumentation may come to be seen as merely the "window-dressing" for what we know by instinct to be right or wrong.
Maryland Discovery Problems and Solutions
