The Rhetoric of Torts: How Advocates Help Jurors Think about Causation, Reasonableness, and Responsibility

How do jurors in accident cases think about negligence, and to what extent do their conceptions conform to the law? This Article examines closing arguments in several accident cases, showing the extent to which advocates appeal to the knowledge structures and inferential heuristics that people use to judge causation and responsibility in everyday life. Through argument structure, point of view, verb tense, metaphor, and other linguistic devices, attorneys construct a rhetoric that combines legal rules with the tools of ordinary judgment. The conceptions of negligence implicit in these arguments occasionally conflict with the law; the Article indicates the cognitive and sociopsychological grounds for such conflict.

More often, the analysis of attorneys' rhetoric suggests how jurors can apply the law's very general guidelines to yield particular "common-sense" notions of negligence that are consistent with the law.