The 2016 movie Arrival presented the problem of an alien species landing on earth and the issues surrounding communication. It highlighted the importance of linguistic understanding and linguistic mirroring.
Instead of communicating with aliens, trying to effectively communicate with a judge or panel of judges can be challenging. While not the same divide as alien to humans, there is a chance of alienating judges.
Rhetoric helps attorneys tailor their language to match rhetorical preferences of judges. Academic research suggests this type of linguistic mirroring can increase the chance of winning a case by up to 20% or more. But what does that look like in practice?
Summary/Overview:
Taking a sample of five cases across three courts, we compared the winning and losing briefs to the courts in which they were decided. The results were astounding. On average, the Rhetoric score for the winning briefs was 48% higher than the losing briefs. The difference in scores ranged from 24% higher for the United States ex. Rel. Schutte v. SuperValu Inc. case before the Supreme Court of the United States, up to 86% higher for the Epic Games v. Apple case before the Ninth Circuit Court of Appeals.
The Cases:
United States Court of Appeals for the Second Circuit:
In Securities and Exchange Commission v. Govil, the court ruled for Appellant Govil. You can see from the Rhetoric analysis of both parties’ briefs that Govil’s brief more closely aligned with the judges rhetorical preferences.
The Winner:
The SEC's brief fell dramatically short compared to the court's jurisprudence preferences.
The Loser:
In National Rifle Association of America v. Maria T. Vullo, the court ruled in favor of Appellant Vullo. That brief also more closely aligned with the court's linguistic preferences. The difference in Jurisprudence between the winning and losing briefs is striking.
The Winner:
The brief for the National Rifle Association of America aligned more closely with the court in Tone, but significantly differs in Jurisprudence.
The Loser:
The United States Court of Appeals for the Ninth Circuit
In Epic Games v. Apple, the court ruled in favor of Appellee Apple and the brief for Apple far more closely aligned with the court's preference in all three categories.
The Winner:
The brief for Appellant Epic Games fell short in all three categories, but especially so in jurisprudence.
The Loser:
In California Restaurant Association v. City of Berkeley, the court ruled in favor of Appellant California Restaurant Association. You can see below that the brief for the California Restaurant Association more closely aligned with the court's preferences for Jurisprudence and Tone.
The Winner:
The brief for the City of Berkeley fell far short in Jurisprudence and Tone.
The Loser:
Supreme Court of the United States
In USA ex. rel. Schutte v. SuperValu, et. al., SCOTUS ruled in favor od the Appellant, USA ex. rel. Schutte. You can see their brief very closely aligns with the court in Jurisprudence and Sentiment.
The Winner:
The brief for Appellee SuperValu et. al., more closely aligns with the court in Tone, but because it is lacking in Jurisprudence and Sentiment, the score is much lower overall.
The Loser:
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