Wednesday, November 29, 2006

Persuasion: get rejected, then win

Something interesting to think about. A controversial suggestion from a well-researched law-review article on persuasive writing. The piece I quote from is--

Kathryn Stanchi, The Science of Persuasion: An Initial Exploration, to be published in the Michigan State Law Review, p. 411, 2006, and available on the web at: http://ssrn.com/abstract=927397

(footnotes omitted)

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3. “Door in the Face”: Create a Scenario of Initial Rejection
Seemingly contrary to foot-in-the-door, there is some research that compliance is enhanced by making a large request first.51 The strategy of beginning a persuasive message with a more contentious proposition that the reader is likely to reject is called the “door in the face” strategy. The research shows that the recipient, having rejected the first larger request, is thereafter somewhat more inclined to acquiesce to a second, smaller request.

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4. Argument Chains that “Work on” the “Door in the Face” Principle
Because the door-in-the-face principle conflicts with a longstanding tradition of appellate advocacy writing, briefs that begin with an aggressive, controversial premise are rarer than those that begin with benign, agreeable premises. There are, however, some examples that demonstrate the tactic.

In the plaintiff-respondent's brief in Meritor Savings Bank v. Vinson, for example, the respondent began her merits brief before the United States Supreme Court by arguing that certiorari was improvidently granted, and made arguments about the record that she did not make in her brief responding to the petition for certiorari. Although beginning the merits brief with this argument had its strategic and logical advantages, the argument had many of the hallmarks of a door-in-the-face initial request.

First, it was risky. It was highly unlikely that the Supreme Court would accede to an argument that raised something new in the merits brief that was not argued in the response to the petition for certiorari, which, as petitioner pointed out, was the more appropriate place for the argument procedurally. Moreover, there was nothing to indicate that there was disagreement among the members of the Court about granting the petition for certiorari, which means that, at a minimum, four Justices voted to grant certiorari and the others did not feel strongly enough to dissent.

Second, the attack on certiorari was a “big” request. It asked the Court to reverse its initial decision and publicly admit that it had mistakenly granted the original cert petition.

Finally, the request asked for a “big” win; were respondent to convince the Court to reverse its initial grant of certiorari, that decision would let stand as precedent a court of appeals opinion highly favorable to the respondent on a number of cutting-edge issues. For all of these reasons, the Court was likely to reject the argument, and, indeed, it did. Neither the majority opinion nor the two separate concurring opinions even mention the argument.

On the other hand, the request was neither unreasonable nor absurd, and there is evidence that the Court found aspects of it persuasive. Aspects of the respondent's arguments about certiorari, particularly the abstract and ambiguous quality of key facts in the record, are echoed in the Court's discussion of respondeat superior liability. A request that involves a high risk of rejection but is reasonable is critical to the door-in-the-face response. Moreover, the respondent achieves a number of significant victories with the arguments that follow the “big” request, including an overall win on result (the Court affirmed the favorable decision below).

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