“I’m not writing so much about substantive law as I am about how you would write something in a substantive field to persuade someone else in that field,” Berger said.
Berger, who is in her first year as a professor at UNLV William S. Boyd School of Law, researches and writes in the field of legal rhetoric. Recently, she has analyzed and written about the ways in which judges’ decisions match up with the stories and images (narratives and metaphors) that are traditional in our culture. In one article, Berger examined the influence of traditional images of mothers, fathers, and families on child custody decisions. Similarly, culturally embedded stories of wise judges (going back to King Solomon) can be seen to have affected those decisions. In addition to uncovering such images and stories through rhetorical analysis, Berger also makes suggestions for lawyers to work more imaginatively with metaphor and narrative. These suggestions can help lawyers better fit their clients’ situations into the rules that grew up alongside long-established stories and images.
“In my scholarship, I’m more interested in how the judicial decision making process works, and especially in how to persuade decision makers, than I am in what the rules are,” she said.
Berger’s most recent work draws on cognitive studies of decision making. In particular, she is exploring whether judges engage in something similar to the “recognition-primed decision model” that has been identified in studies of experts in other professions. When a person experienced in an area is faced with a complex issue, these studies indicate that the expert quickly recognizes patterns and then makes a decision based on simulating or imagining the outcome of various approaches. The model emerged in studies of decision makers such as firefighters, nurses, jet pilots, and military commanders.
“Even though there are many differences between judges and military commanders in the field, it will be interesting to examine whether the decision model provides insights into judging.”
Berger said one area where judges might be likely to demonstrate this type of decision making would be at the trial court level where a judge is more likely to have to make decisions based on uncertain facts under time pressure. One challenge in her research has been the difficulty of obtaining sufficient trial court decisions on a particular subject to analyze.
Berger has been interested in rhetoric and writing for a long time. “I was a journalist before law school, and I’ve always been interested in how communication and composition work,” she said.
After entering the legal field, Berger became more interested in the interpretation of writing.
“If you can see what is effective and figure out why, you can apply that principle to your own writing,” she said.
Berger said she was particularly drawn to the Boyd School of Law because of its youth, energy, and commitment to the community. In addition, she said taking the position at Boyd School of Law gives her the opportunity to work with people whom she has admired in the legal writing field. Previously, Berger taught at the University of San Diego School of Law, Thomas Jefferson School of Law, and Mercer University School of Law.
“I get a very positive and optimistic outlook about the future from most of the people I meet here at UNLV,” she said.