The ABA Journal has the news: social science researchers have parsed the data and concluded that oral advocates exhibiting more “manly” speaking styles are likelier to lose, while those displaying more confidence in tone are likelier to lose. A few random observations:
- The data is based on 200 researchers (sourced via Mechanical Turk) listening to recordings of 60 lawyers making the 8-word intro (“Mister Chief Justice, may it please the court”) at the beginning of oral argument before the Supreme Court. Hold your jokes about analytical rigor and the social sciences.
- There’s a big correlation/causation issue here. More confident-sounding speakers may well sound that way because they’ve got the better case and they know it. Even lawyers (who aren’t even social scientists) can build an algorithm that can predict Supreme Court decisions with over 70% accuracy. And you can be damn sure the lawyers working in the trenches on these cases know whether they are on the inside track or slogging messily uphill.
- I suspect that oral argument at the Supreme Court is more a matter of kabuki theater and ego-burnishing than it is likely to make difference in the case one way or the other. I mean, I’d do it in a heartbeat if I had the opportunity, but I wouldn’t harbor any illusions that my oral advocacy would matter nearly as much as the briefing (to say nothing of the existing predispositions of the justices).
- Finally, the “manliness” point: I suspect that “manliness” in this context is roughly synonymous with “aggressiveness.” Aggressiveness is a quality many attorneys pride themselves on – and even advertise on the basis of – but in my experience extremes of aggressiveness in representation are usually counter-productive. Other people don’t find such displays attractive, so they only work if they succeed in intimidating the other side. For good advocates, overt aggression is a tactic of last resort.
And so we’re back to correlation and causation – the “manly” advocates may show up on the losing side more often simply because these attorneys knew they were facing an uphill fight and employed, consciously or not, their worst-case approach.
Unfortunately, while aggression is a low-percentage tactic even when negotiating or arguing in general, it got to be singularly unhelpful when arguing before the Supreme Court.