Document Type

Article

Publication Date

8-23-2014

Abstract

Negative political advertising has become commonplace for one simple reason it works Cognitive pyschologists attribute this to a phenomenon they call the brain's ÔÇ£negativity biasÔÇØ That is our brains are more apt to process and retain negative information as opposed to positive information As one neuropsychologist has put it ÔÇ£your brain is like Velcro for negative experiences and Teflon for positive onesÔÇØCognitive psychologists have concluded that bad stimuli have significantly more power across a broad range of psychological phenomena What are the implications of this finding for legal writing For example how do judges respond to negative themes in briefs Should lawyers phrase their legal arguments in terms of avoiding bad outcomes instead of promoting good outcomes Should rule statements in briefs highlight the possible negative consequences of a particular ruling as opposed to a positive outcome Should advocates adopt a negative or aggressive tone in their writing Does this finding change the way lawyers should do or at least think about counteranalysis Does a judge's negative opinion of an advocate have more power than a potential positive view of the clientAnswering these questions in the affirmative might be controversial Many a judge as well as many legal writing professors counsel lawyers and law students to avoid the negative and emphasize the positive Given the near ubiquitousness of this advice it seems that the cognitive psychology on negativity bias is worth studying Have we all been giving bad advice all this time This article discusses the cognitive psychology findings then suggests some hypotheses for how they might inform choices that advocates might make It is intended to open a conversation about how the negativity bias might affect the process of persuasion

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