Next year’s DRI Appellate Seminar

For those who like to plan way, way ahead, DRI has announced its 2022 CLE schedule, with the Appellate Advocacy Seminar scheduled for November 1–2, 2022 in San Diego. DRI’s programs are generally first-rate. I’ve attended 15 of their Appellate Advocacy Seminars over the years, and they’ve all been terrific. It’s too soon to register, but not too soon to block out the dates.


How to fake do ethos

The secret of success is sincerity. Once you can fake that you’ve got it made.
—attributed to Jean Giradoux

As we saw in my last post, the three components of an advocate’s ethos or trustworthiness are intelligence, honesty, and benevolence—or more accurately, the judge’s perception that the advocate is intelligent, honest, and benevolent. How does one create this impression? As observed by Corbett and Connors,

[a]n obvious answer, of the general sort, is that a person must truly possess these qualities. “No one gives what he does not have,” as the Latin maxim puts it.

They were kidding, just a little bit. They themselves also said that, according to Aristotle, it is the speech or writing itself that much create this impression. It follows that we all can create our own ethos by acting intelligently, honestly, and benevolently when we write a brief or give an oral argument. That’s how any virtue works: we act as if we have the virtue, and the habit of so acting makes us virtuous.

That’s the good news. The other news (I don’t want to call it “bad news”) is that displaying intelligence, honesty, and benevolence in a brief or oral argument takes a lot of work—especially the intelligence part. There are no shortcuts. Contrary to Jean Giradoux, you can’t fake ethos. But you can do ethos. How to do that will be the subject of the next few posts.

Sources:

  • Edward P.J. Corbett and Robert J. Connors, Classical Rhetoric for the Modern Student 72 (4th ed. 1999).
  • Michael R. Smith, Advanced Legal Writing 125–26 (2d ed. 2008).

The importance of ethos

Let’s say you need to get your car repaired, and there are just four auto mechanics in town.

  1. is honest and wants the customer to be happy, but isn’t very smart.
  2. is smart and honest, but doesn’t care whether the customer is happy.
  3. is smart and wants the customer to be happy, but has a reputation for being dishonest.
  4. is smart, is honest, and wants the customer to be happy.

Did you pick D? Would you use D even if D charged a little more than A, B, and C? If so, you based your choice on the mechanic’s ethos.

In classical rhetoric, ethos is the third mode of persuasion, alongside logos (appeal to reason or logic) and pathos (appeal to emotion). Ethos is the appeal based on the character of the speaker or writer. The product of ethos is credibility. And credibility is crucial to persuasion.

Without credibility, you may possibly gain the judge’s attention, but you will never maintain it. Unless the judge’s attention is maintained, the judge will never be induced to accept your conclusion. And unless the judge is persuaded to accept the conclusion, the brief is not worth the paper (real or electronic) it is written on. Getting the judge to accept the conclusion is to appellate advocacy what the bottom line is to business.

Tessa L. Dysart, Leslie H. Southwick, and Ruggero J. Aldisert, Winning on Appeal 18 (3d ed. 2017).

Ethos arises from three qualities: intelligence, benevolence, and high moral character. Intelligence means that the advocate knows what he or she is talking about: that the advocate is smart and has done the necessary homework. Benevolence means good will toward the decision-makers and others involved in the matter. High moral character means that the advocate displays truthfulness, candor, respect, and professionalism. Most important, it is the speech or the writing itself that must create these impressions.

Do these qualities, identified by Aristotle over 2,000 years ago, matter today? To answer that question, let’s return to our thought experiment with the four mechanics. Which one would you trust? Not A, because though A is a good person, A isn’t very good at figuring out the problem or the solution. Not B, because B doesn’t care about the customer’s needs. Not C, because by definition, a dishonest person can’t be trusted. But when you find a mechanic like D, you know you can trust that mechanic. You may even be willing to pay a little more for D’s services because you think the extra money is well spent.

As an advocate,  you want to be like mechanic D. You want the judges to perceive you as being trustworthy. If they don’t think you’re trustworthy, they won’t buy your argument.

How do you establish ethos or trustworthiness? One could write a book about that—in fact, Professor Michael Smith already has. His book, Advanced Legal Writing (2d ed. 2008), contains two chapters with 72 pages explaining ways that a brief can establish the writers’s intelligence, benevolence, and high moral character. In future posts, I’ll try to summarize some of Smith’s main points and other tips for establishing ethos. Meanwhile, here are the usual sources for this post and recommendations for further reading:

  • Linda L. Berger and Kathryn M. Stanchi, Legal Persuasion: A Rhetorical Approach to the Science 5 (2018).
  • Tessa L. Dysart, Leslie H. Southwick, and Ruggero J. Aldisert, Winning on Appeal 18 (3d ed. 2017).
  • Edward P.J. Corbett and Robert J. Connors, Classical Rhetoric for the Modern Student 19, 72–73, 77, 280 (4th ed. 1999).
  • Michael R. Smith, Advanced Legal Writing 123–95 (2d ed. 2008).

The place to win an appeal

Quotable quote by Justice Robert H. Jackson:

Most lawsuits are ended as soon as there is a final settlement of the facts. The success or failure of young lawyers will be determined by the way they investigate and prepare and present cases to the triers of fact. A surprising number of cases every term are thrown out of our Court because counsel in the trial courts have not made adequate records, have not preserved crucial questions or have not asked appropriate instructions or findings. The place to win an appeal, as well as a verdict, is in the trial court.

Robert H. Jackson, “The Advocate: Guardian of Our Traditional Liberties,” in Classic Essays on Legal Advocacy 21, 28 (George Rossman ed. 2010).


Pathos: a right way and a wrong way to use it

In yesterday’s post, I talked about the importance of pathos—the appeal to emotion—in the art of persuasion. Today, I’ll talk about how to pull off a pathos-based argument.

All the experts agree that an overt appeal to emotion is ineffective and possibly counterproductive, especially in an appellate court. In their book on classical rhetoric, Corbett and Connors point out that our emotions are not under the direct control of our volition. For that reason, “it is perilous to announce to an audience that we are going to play on the emotions. As soon as we apprize an audience of such an intention, we jeopardize, if we do not entirely destroy, the effectiveness of the emotional appeal.” According to Justice Scalia and Bryan Garner, that caution goes double for lawyers attempting to persuade judges. Judges are trained to resist and may even resent a “jury argument”—a blatant appeal to sympathy or other emotions.

The right way to make a pathos-based argument is through the facts. As Corbett and Connors explain, “we must get and the emotions indirectly.... We arouse emotion by contemplating the object that stirs the emotion. So if we seek to arouse the anger of an audience, we must describe a person or a situation of a sort that will make the audience angry.” This can be done dispassionately; in fact, it is often more effective when done that way. Professors Berger and Stanchi recommend “keeping the emotional dimensions in mind when picking a theme for the story that you will present to the decision maker and highlighting, through your structural choices, the most emotionally powerful and thus memorable facts.” Professor Smith offers similar advice; he recommends “strategically explaining and emphasizing particular facts in the matter at hand that are designed to evoke favorable emotions in the audience. Telling the facts of a matter in such a way as to evoke sympathy for one's client or, alternatively, telling facts to evoke anger toward an opposing party’s behavior are common examples of this strategy.”

If your client isn’t sympathetic, you may consider making what Professor Smith calls a policy-based argument: explain how a particular decision or outcome will harm or benefit the public good. Appellate judges know that their decisions set precedents, and that people tend to conform their behavior to those precedents, the same as to other laws. As Professor Smith explains, “Policy arguments take advantage of this precedential quality of judicial decisions by focusing on the effect the court’s decision in the present matter will have on future behavior and situations.”

Sources for this post and recommendations for further reading:

  • Edward P.J. Corbett and Robert J. Connors, Classical Rhetoric for the Modern Student 78–84 (4th ed. 1999).
  • Antonin Scalia and Bryan A. Garner, Making Your Case 26–28, 32 (2008).
  • Linda L. Berger and Kathryn M. Stanchi, Legal Persuasion: A Rhetorical Approach to the Science 109 (2018).
  • Michael R. Smith, Advanced Legal Writing 90, 93 (2d ed. 2008).

Pathos: the appeal to emotion

For appellate advocates, persuasion means getting a panel of judges to do something favorable to the client’s cause, usually to affirm, reverse, modify, or vacate a trial court’s judgment. In Louisiana civil cases, persuasion may also includge getting the panel of judges to render a judgment favorable to the client’s cause. See La. Code Civ. P. art. 2164. Persuading another person to do something often requires engaging the other person’s emotions. This is why, a couple thousand years ago, Aristotle included pathos—the appeal to emotion—in his teachings on rhetoric. As Aristotle recognized, it is our will that moves us to action, and our will is often swayed by emotion. Today, neuroscientists recognize that emotions can affect our judgment and choices, our perceptions, and even our cognition.

People don’t like to admit that emotion sways their judgment. That probably goes double for at least some judges. Some lawyers and judges may argue that emotions have no place in judicial decision-making. Some may criticize the idea of using pathos by quoting this passage from Justice Antonin Scalia and Bryan A. Garner’s book Making Your Case (p. 32):

Appealing to judges’ emotions is misguided because it fundamentally mistakes their motivation. Good judges pride themselves on the rationality of their rulings and the suppression of their personal proclivities, including most especially their emotions. And bad judges want to be regarded as good judges. So either way, overt appeal to emotion is likely to be regarded as an insult. (“What does this lawyer think I am, an impressionable juror?”)

Scalia and Garner are right that an overt appeal to emotion—a so-called “jury argument”—is a bad idea when trying to persuade any judge, especially an appellate judge. More important, Scalia and Garner agree that there’s “a distinction between an overt appeal to emotion and the setting forth of facts that may engage the judge’s emotions uninvited.” Scalia and Garner also agree that it’s “essential” to appeal to the judge’s values, such as the judge’s sense of justice. As we’ll see in a future post, those are exactly the right ways to make a pathos-based argument.

For anyone stuck on the notion that only logos-based arguments have a place in legal persuasion, I offer this syllogism:

All humans’ thoughts and actions are influenced by emotion.
Appellate judges are human.
Therefore, [fill in the blank].

As always in this series of posts, I’ll close with a list of sources and suggestions for further reading:

  • Antonin Scalia and Bryan A. Garner, Making Your Case 27–28 and 31–32 (2008).
  • Edwart P.J. Corbett and Robert J. Connors, Classical Rhetoric for the Modern Student 18–19, 77–80, 84 (4th ed. 1999).
  • Linda L. Berger and Kathryn M. Stanchi, Legal Persuasion: A Rhetorical Appraoch to the Science 109 (2018).
  • Michael R. Smith, Advanced Legal Writing 11–12, 23–24, 89–94 (2d ed. 2008).

Logos: argument by analogy

Have you ever argued that the facts of your case resemble those in a reported decision, so that whatever ruling was made in the reported decision should also be made in your case? On the flip side, have you ever argued that a ruling in a reported case should not be made in your case because of a crucial difference between the facts in the reported case and the facts in your case? The answer to both questions is probably “yes.” As 1L’s, we all learned to analogize friendly cases and distinguish unfriendly cases. In rhetorical terms, we learned to argue by analogy.

In classical rhetoric, argument by analogy comes under the heading logos, or appeal to reason and logic. As explained by Edward Corbett and Robert Connors, the argument by analogy “revolves around the principle that two things which resemble one another in a number of respects resemble one another in a further, unconfirmable respect.” Corbett and Connors further explain that the persuasiveness of an argument by analogy depends on two principles:

  1. The similarities between the two things concern pertinent, significant aspects of the two things.
  2. The analogy must not ignore pertinent dissimilarities between the two things.

For legal argument, the strength of the analogy also depends on a third principle: binding cases are more important than merely persuasive cases.

When we seek to distinguish unfriendly cases, the principles work in reverse—especially the second one. Any dissimilarities we point out must be pertinent; otherwise the court may consider the argument a “distinction without a difference.” And if the reported decision is non-binding, it never hurts to point that out.

A way to think about analogy is to compare it to deductive reasoning and inductive reasoning. Deductive reasoning moves from the general to the particular. Inductive reasoning moves from the particular to the general. Analogy moves from the particulars of one case to the particulars of another, showing either their similarities or dissimilarities.

Here are the sources for this post and recommendations for further reading:

  • Edward P.J. Corbett and Robert J. Connors, Classical Rhetoric for the Modern Student 69, 93–95, and 119 (4th ed. 1999).
  • Ruggero J. Aldisert, Logic for Lawyers 51–52 and 93 (3d ed. 1997).

Logos: inductive reasoning

Lately, I’ve been writing about classical rhetoric and its three modes of persuasion: logos (appeal to reason), pathos (appeal to emotion), and ethos (appeal based on the speaker’s or writer’s character). Yesterday, we looked at one type of logos argument: deductive reasoning. Today, we’ll look at another type of logos argument: inductive reasoning.

The best way I can explain inductive reasoning is by contrasting it with deductive reasoning. In deductive reasoning, we start with a given broad principle and prove the principle’s application to a specific case. Deductive reasoning thus moves from the general to the particular. Inductive reasoning moves in the opposite direction: from the particular to the general. Advocates use inductive reasoning to establish the broad principle, which in turn is applied deductively to the case at hand. In syllogistic terms: deductive reasoning assumes the truth of the major premise; it’s used when everyone agrees on the major premise but they disagree on whether it applies to the case at hand. Inductive reasoning attempts to prove the truth of the major premise; it’s used when the debate is over the major premise itself—when the parties are arguing over what the law is.

In inductive reasoning, an advocate establishes the general principle’s existence by citing other cases as examples of its application. Usually, the more examples, the better. To show how this works, let’s start with the classic syllogism used yesterday as an example of deductive reasoning:

Major premise: All men are mortal.
Minor premise: Socrates is a man.
Conclusion: Socrates is mortal.

This syllogism is fine if everyone agrees that the major premise is true. But if the dispute is over the truth of the major premise, the advocate trying to prove Socrates’ mortality would need inductive reasoning to establish the major premise. Judge Aldisert provided the following example:

Adam is a man and Adam is mortal.
Moses is a man and Moses is mortal.
Tiberius is a man and Tiberius is mortal.
George Washington is a man and George Washington is mortal.
John Marshall is a man and John Marshall is mortal.
Pope John Paul II is a man and Pope John Paul II is mortal.
Therefore, all men are mortal.

A diligent researcher could probably find numerous examples of inductive reasoning in the decisions of the Louisiana Supreme Court, since the Court’s role is to develop the law. Two examples that I’m familiar with are Loescher v. Parr, 324 So. 2d 441 (La. 1975); and Boyer v. Seal, 553 So. 2d 827 (La. 1989). Both cases involved issues of strict liability before the tort-reform legislation of 1996. In both cases, the Supreme Court examined specific code articles and court decisions to arrive at a general principle (inductive reasoning), which in turn was applied to the facts of the case at hand (deductive reasoning).

In Loescher, the issue was whether, under Civil Code article 2317, the owner of a defective thing (in that case, a tree) could be held strictly liable, without negligence, for damage caused by the thing’s defective condition. To answer the question, the Loescher court examined other Civil Code articles providing for strict liability, and found in them a common thread: strict liability arose when a person or thing under the defendant’s control presented an unreasonable risk of harm that caused the plaintiff’s injury. 324 So. 2d at 446. The Loescher court found in these specific examples a “principle of legal fault thus already recognized in favor of an injured person ....” Id. That principle, extracted from specific examples: “When harm results from the conduct or defect of a person or thing which creates an unreasonable risk of harm to others, a person legally responsible under these code articles for the supervision, care, or guardianship of the person or thing may be held liable for the damage thus caused, despite the fact that no personal negligent act or inattention on the former’s part is proved.” Id. Once this principle was established by inductive reasoning, the Loescher court pivoted to deductive reasoning by applying the principle to the facts of the case. Id. at 448–49.

In Boyer, the issue was “whether a plaintiff, who has been injured by a domestic animal, must prove, in order to recover damages from the animal’s owner under Louisiana Civil Code article 2321, that the injury occurred through an unreasonable risk of harm created by the animal.” 553 So. 2d at 827. To answer the question, the Boyer court looked to two sets of examples: (1) other Civil Code articles providing for strict liability, summarized in Loescher; and (2) other cases involving injuries caused by animals. The Boyer court found in both sets of examples a common thread: a requirement that the injury-causing thing or animal present an unreasonable risk of harm. Id. at 832–33. The Boyer court concluded that “the unreasonable risk of harm principle should be maintained in animal cases in the interest of the continued manageable and harmonious application of strict liability under the Civil Code.” Classic inductive reasoning. Once the principle was established, the Boyer court pivoted to deductive reasoning by applying the principle to the case at hand. Id. at 835.

The Louisiana Supreme Court’s jurisprudence is probably chock-full of additional examples of inductive reasoning, especially in cases involving “a significant issue of law which has not been, but should be, resolved by [the supreme] court.” La. S. Ct. R. X § 1(a)(2). If you have a case like that, where the debate is over what the law is or should be, your argument will likely require inductive reasoning.

As always, I’ll end with a short reading list:

  • Ruggero J. Aldisert, Logic for Lawyers 48–50 and 91 (3d ed. 1997).
  • Michael R. Smith, Advanced Legal Writing 66–67 (2d ed. 2008).

And of course, for just two examples of inductive reasoning, read Loescher v. Parr and Boyer v. Seal.


Logos: deductive reasoning (syllogism)

In the last few days, I’ve been posting on classical rhetoric and its lessons on persuasion. I’ve mentioned the three modes of persuasion, including logos, the appeal to logic or reason. And last Friday, I mentioned three aspects of logos: deductive reasoning, inductive reasoning, and reasoning by analogy. Today we’re going to dig more deeply into deductive reasoning.

You’ve probably been using deductive reasoning since law school without knowing its name. As Judge Aldisert observed, “Deductive reasoning is a mental operation that a student, lawyer or judge must employ every working day.” Ruggero J. Aldisert, Logic for Lawyers 45 (3d ed. 1997). In their book Making Your Case, Justice Scalia and Bryan Garner said, “If you have never studied logic, you may be surprised to learn—like the man who was astounded to discover that he had been speaking prose all his life—that you have been using syllogistic reasoning [i.e. deductive reasoning] all along.” Antonin Scalia and Bryan A. Garner, Making Your Case 41 (2008).

In deductive reasoning, we deduce the truth of a statement (the conclusion) from the truth of two other statements (the premises). The classic means of articulating deductive reasoning is called the syllogism. A syllogism usually consists of a major premise, a minor premise, and a conclusion that must follow from the premises. Often, the major premise makes a categorical assertion, and the minor premises puts someone or something in that category, so that what is true of the category must be true of that someone or something. The classic example of a syllogism concerns the mortality of the philosopher Socrates:

Major premise: All men are mortal.
Minor premise: Socrates is a man.
Conclusion: Therefore, Socrates is mortal.

When a syllogism is validly constructed and its premises are true, then its conclusion is inevitably true. This makes the syllogism a powerful persuasive tool. This is why brief-writing experts recommend using syllogisms in crafting issue statements and point headings for briefs. See Making Your Case at 41–43, 83–88, and 100; Bryan A. Garner, The Winning Brief 80, 93, 111–20, and 407–22 (3d ed. 2014).

When your opponent argues in the form of a syllogism, you have two ways to attack the argument: (1)  Show that one or both of the premises are false. (2) Show that the syllogism is invalidly constructed, i.e., that it contains a logical fallacy. To do the latter, you need to know your fallacies. You can find discussions of logical fallacies in Judge Aldisert’s book and in Corbett and Connors’s textbook. Those books and other recommended readings are listed below:

  • Ruggero J. Aldisert, Logic for Lawyers 45–46 (3d ed. 1997) (on deductive reasoning generally); id. at 145–68 (on formal fallacies).
  • Tessa L. Dysart, Leslie H. Southwick, and Ruggero J. Aldisert, Winning on Appeal § 11.4 (3d ed. 2017).
  • Edward P.J. Corbett and Robert J. Connors, Classical Rhetoric for the Modern Student 38, 42–60 (4th ed. 1999) (on deductive reasoning and syllogism), id. at 65–71 (on fallacies).
  • Antonin Scalia and Bryan A. Garner, Making Your Case 41–43, 83–88, and 100 (2008) (using syllogistic reasoning in brief writing).
  • Bryan A. Garner, The Winning Brief, Tips 14–16 (3d ed. 2014).

Logos: the appeal to reason

SpockIn my October 14 post, I introduced classical rhetoric’s three modes of persuasion: logos (the appeal to reason), pathos (the appeal to emotion), and ethos (the appeal based on the speaker’s or writer’s character). Today I’ll talk a bit about the first: logos.

The Greek word logos is the etymological root of the English word logic. In classical rhetoric, logos refers to the speaker's or writer’s appeal to the audience’s logical thought processes. In legal argument, logos refers to persuasion based on legal authorities, such as statutes, caselaw, and administrative rules. Logos includes the legal reasoning and argument structures that we learned in law school.

In any legal argument, logos is indispensable. In other areas of life, we may be able to get away with arguments based primarily on pathos or ethos. But in court, we have to persuade a judge or panel of judges that the law requires a particular ruling or outcome. Any argument that a particular outcome follows from what law requires is a logos argument. In fact, in formal logic, the word argument refers to “any group of propsitions where one proposition is claimed to follow from the others, and where the others are treated as furnishing grounds or support for the truth of the one.” Ruggero J. Aldisert, Logic for Lawyers 28 (3d ed. 1997).

When we argue according to Judge Aldisert’s definition, we are reasoning either deductively or inductively. We may also reason by analogy, which is related to and sometimes included in inductive reasoning. The next few posts will address each of these forms of reasoning.

One last comment: as its name suggests, logos requires logical thinking. Unfortunately, most lawyers have had no formal education in logic. (Those with undergraduate majors in philosophy may be the exception.) And the topic is too involved to be effectively taught in a few one-hour CLE sessions. Making up for that gap in our legal education requires self-study. Toward that end, I highly recommend Judge Aldisert’s book, Logic for Lawyers, cited above. See also the following authorities for this blog post:

  • Michael R. Smith, Advanced Legal Writing 22 (2d ed. 2008). See also Part II, Chapters 3–4, pp. 27–85 of Professor Smith’s book, which provide several strategies for making logos-based arguments.
  • Edward P.J. Corbett and Robert J. Connors, Classical Rhetoric for the Modern Student 18 (4th ed. 1999).
  • Tessa L. Dysart, Leslie H. Southwick, and Ruggero J. Aldisert, Winning on Appeal § 113, at 167 (3d ed. 2017).

Spock photo credit here.