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The United States Law Week
The Blind Justice statue stands outside a federal courthouse in Virginia.
Photographer: Andrew Harrer/Bloomberg
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Feb. 8, 2021, 5:00 PM
Georgetown University Law Professor Erin Carroll says that for justice and democracy to work,
attorneys need to be able to persuade and be open to persuasion. Teaching !rst year law
students the art of persuasion in 2021, when people are less open to changing their minds with
new evidence or information, is di"cult, she says, but it’s critical that attorneys listen, put
themselves in their opponents’ shoes, and realize they might be wrong.
Across the country, first-year law students spend the spring semester learning to be
advocates. They draft briefs on fictional legal problems to convince hypothetical
judges of the rightness of their arguments. Professors, like me, who shepherd
students through the process, often label the spring the “persuasive semester.”
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In 2021, the persuasive semester is feeling futile. Outside my classroom, the past
four years have been more a lesson in the art of heel-digging than dialogue. As I’ve
watched Congressmen nearly throw punches on the House floor, citizens defend
conspiracy theories, and Twitterati blithely call for “canceling” those who contest a
particular orthodoxy, I am left asking: Is persuasion dead?
Not so long ago, I firmly believed in the possibility of persuasion. As a litigator at a
law firm, I built a career around it. As a law professor, I have tried to teach students
how to do it effectively and ethically.
For our first class of the spring semester, my students read Martin Luther King Jr.’s
Letter from a Birmingham Jail. I, and many other teachers, use it to introduce the
building blocks of classical rhetoric—the art of persuasion dating back thousands of
years. King weaves logos (logic), ethos (credibility), and pathos (emotion) in a tourde-force of persuasion. Each time I read it, I am stunned by its power. I am
persuaded anew. But in January of 2021, I also wonder, could King’s words persuade
the racists of today? Or, have too many people shut out any challenges to their
beliefs?
Because for justice to be done, for democracy to work, and for us to flourish, being
able to persuade isn’t enough. We need to be open to persuasion. The prosecutor
needs to be amenable to the alibi. The plaintiff’s lawyer needs to be able to believe
the defendant made a mistake. The judge needs to be willing to recognize that a
legal precedent is unjust. We all—lawyers and non-lawyers alike—must be ready to
concede that maybe, just maybe, we are wrong.
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But we have collectively hardened to this possibility. Persuasion is crumbling in the
face of, among other things, what social psychologist Arlie Hochschild has called the
“deep story.” Deep stories are those we tell ourselves about who we are and what we
believe. These stories may not actually be true, but they feel true. And when facts
conflict with these deep stories, we tend to jettison the facts.
Our deep stories and our preference for coherence over truth contribute to the
pandemic of online disinformation. As digital media scholar Whitney Phillips has
said, sometimes “shining a light does not disinfect.” Sometimes, it merely puts a
spotlight on falsehoods.
Plus, social networking platforms are optimized to intensify our beliefs and feelings.
As we scroll through posts pegged to play to our biases, we reflexively give a
thumbs-up, but little critical thought, to what we see.
Neither I nor my law students are immune to deep stories. Advanced degrees don’t
wholly inoculate us. We could look to the Supreme Court for proof. In many cases, it
is relatively easy to predict how a certain justice will vote. We could attribute this to
ideology or doctrine, but in some instances, it may be the result of a refusal to be
persuaded.
Of course, persuadability is not always desirable. There are moral imperatives and
issues worthy of heel-digging. But the universe of these issues is likely far smaller
than we have come to believe.
This spring, in addition to teaching my students to persuade, I hope to expand their
openness to being persuaded. To do that we will put ourselves in the shoes of our
opponent. We will try to listen to and understand the story they are telling. We will
practice what poet Marilyn Nelson and others have called “generous listening,” in
which you are truly hearing and appreciating what is being said by another. We will
lean into logic and credibility, along with emotion.
As with all the skills I teach, I will try to practice these things in my own life, too. Can I
persuade you to join me?
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc.
or its owners.
Write for Us: Author Guidelines
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Erin Carroll is a professor of law, legal practice at Georgetown Law. She teaches courses
on legal analysis and communication as well as technology and the press.
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Oystermen in Florida and farmers in Georgia have been locked in a
bitter argument over shared river resources for decades. Their dispute
reaches the U.S. Supreme Court on Monday, where justices will face
the question of how much water is enough.
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Parler LLC, the conservative social media platform whose service was
suspended after the U.S. Capitol riot last month, is assembling a highpowered legal team for its antitrust lawsuit against Amazon.com Inc.
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It’s only February, but the richest law firms in the country are doing a
lot more hiring so far than they did last year. It’s the result of a year
that saw major firms grow profits at record rates.
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Facebook has started restricting the sharing of news on its service in Australia,
defying a controversial proposed law that would require technology companies to
pay publishers when their articles are posted by users.
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Oystermen in Florida and farmers in Georgia have been locked in a
bitter argument over shared river resources for decades. Their dispute
reaches the U.S. Supreme Court on Monday, where justices will face
the question of how much water is enough.
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Weibo Corp., China’s largest micro-blogging service, is planning a second listing in
Hong Kong as soon as this year, people familiar with the matter said, joining a
growing cohort of U.S.-traded Chinese firms in seeking a trading foothold in the
financial hub.
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