Playing With Fire: The Science of Confronting Adverse Material in Legal Advocacy

The Article seeks to use the science to determine what treatment of adverse information is most beneficial to the client\u27s position. A careful study of the science reveals that, overall, it is advantageous for the advocate to volunteer negative information and rebut it early, and that a direct and in-depth confrontation of negative information is generally more effective than an indirect and cursory treatment. A close look at the finer points of the data, however, reveals that the question of disclosure is a complicated one. Therefore, legal advocates should learn about the research findings and the theories underlying the research in making the decision about whether to volunteer adverse information. For example, the general rule favoring disclosure applies where the advocate has a competent and effective refutation for the information; when such a refutation is not available or is weak, the advocate may be better off not disclosing. Moreover, the data also reveal that there are somewhat surprising reasons for the persuasive advantage of preemptive disclosure that go beyond the conventional wisdom of boosting credibility. Advocates who fully understand the reasons underlying the persuasive value of disclosure will be better guided in their decision making about when to disclose. Moreover, teachers of advocacy will be better able to guide their students. Advocates who arm themselves with deeper knowledge of how people react to the disclosure of negative information will be in a better position to make decisions for their clients, and will have a better feel for the winning strategy