Louisiana Civil Appeals

Ethos: How to show intelligence

As we’ve seen in prior posts, an important mode of persuasion is ethos, the appeal based on the character of the speaker or writer. Ethos equates to trustworthiness. An advocates projects trustworthiness by showing intelligence, benevolence toward the audience, and high moral character. Today’s subject: how to show intelligence. For legal advocates, the answer is simple: do your homework.

If you made it through law school and passed the bar exam, you have all the innate intelligence you need. But simply having innate intelligence is not enough to project the ethos quality of intelligence. To project intelligence, the argument or brief  “must show that the speaker or writer has an adequate, if not a professionally erudite, grasp of the subject being talked about, that the speaker or writer knows and observes the principles of valid reasoning, is capable of viewing a situation in the proper perspective, has read widely, and has good taste and discriminating judgment.” Edward P.J. Corbett and Robert J. Connors, Classical Rhetoric for the Modern Student 72–73 (4th ed. 1999). For the appellate advocate, the standard is not merely “adequate,” but “professionally erudite.” That means knowing the record and the applicable law backwards and forwards. In two words: read everything. It also requires being able to think logically, which requires a working knowledge of logic. For help with that, read Judge Ruggero Aldisert’s book Logic for Lawyers. Finally, the advocate must come across as a reasonable person, not a bomb thrower.

In his book Advanced Legal Writing, p. 148 (2d ed. 2008), Professor Michael Smith offers a list of 11 qualities that an intelligent legal writer is perceived to have:

1. Informed
2. Adept at legal research
3. Organized
4. Analytical
5. Deliberate
6. Empathetic toward the reader
7. Practical
8. Articulate
9. Eloquent
10. Detail oriented
11. Innovative

Smith’s book includes an entire chapter on ways a brief writer can demonstrate these qualities, with illustrative examples. I highly recommend it, along with the other books cited in this post. If you’re interested in buying any of these books, click on the book’s link in the right sidebar of this blog under the heading “Books for La. Appellate Lawyers.”

Supervisory writs in First Amendment cases

When we apply to the court of appeal for a supervisory writ, our first task is to persuade the court to exercise its supervisory jurisdiction to consider the application’s merits. To do this, we often argue either that the trial court’s judgment causes irreparable injury (meaning an injury that cannot be corrected on appeal after final judgment) or that the case meets the three criteria of Herlitz Contruction Co. v. Hotel Investors of New Iberia, Inc., 396 So. 2d 878 (La. 1981): (1) the trial court’s judgment is arguably incorrect; (2) reversal would terminate the litigation; and (3) there is no dispute of fact to be resolved.

If you represent a defendant with a First Amendment defense, that defense may be another way to persuade the court to decide the merits. The Louisiana Fourth Circuit said so explicitly in Roppolo v. Moore, 93-2361, p. 2 (La. App. 4 Cir. 7/27/94), 644 So. 2d 206, 208*:

This Court believes that the exercise of its supervisory powers should be liberally invoked where First Amendment freedoms are at stake. The exercise of First Amendment rights should not be discouraged by the threat of harassing lawsuits.

In support of its stance, the Fourth Circuit cited the Louisiana Supreme Court’s decision in Mashburn v. Collin, 355 So. 2d 879 (La. 1977). Mashburn contains the following quotable quotes:

In cases affecting the exercise of First Amendment liberties, proper summary judgment practice is essential. [Id. at 890.]

. . .

Summary adjudication may be thought of as a useful procedural tool and an effective screening device for avoiding the unnecessary harassment of defendants by unmeritorious actions which threaten the free exercise of rights of speech and press. [Id. at 891.]

Two other cases worth a look in this situation are Schaefer v. Lynch, 406 So. 2d 185 (La. 1981), and Batson v. Time, Inc., 298 So. 2d 100 (La. App. 1 Cir. 1974). In these cases, the Louisiana Supreme Court and the Louisiana First Circuit respectively granted writs to decide the merits of First Amendment issues raised in the writ application. In Schaefer, the Louisiana Supreme Court granted the writ “to determine whethe trial on the merits in this libel action would infringe on the rights of freedom of speech and freedom of the press guaranteed under the First and Fourteenth Amendments of the United States Constitution.” 406 So. 2d at 187. In Batson, the First Circuit suggested that a case involving a First Amendment defense also involves the prospect of irreparable injury. After discussing the First Amendment arguments raised by the defendants and applicants but finding that it lacked appellate jurisdiction, the First Amendment considered the merits under its supervisory jurisdiction because “adequate remedy does not exist by appeal, and ... irreparable injury might otherwise result.” 298 So. 2d at 106.

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* Disclosure: Roppolo was one of my early successes.

Supplemental materials for Bridging the Gap participants

Today I gave a one-hour CLE presentation on appellate practice for the Louisiana State Bar Association’s Bridging the Gap webinar for new lawyers. For the webinar participants and anyone else who may be interested, here are some links to resources that you may find helpful:

• My written materials.
• My slide show.
• Ruth Anne Robbins, Painting with print: Incorporating concepts of typographic and layout design into the text of legal-writing documents, 2 J. ALWD 108 (Fall 2004).
• U.S. Seventh Circuit’s Requirements and Suggestions for Typographs in Briefs and Other Papers.
• Matthew Butterick, Typography for Lawyers.
• Immortal Forms: The Vampires of Legal Writing, For the Defense (DRI Jan. 2009).

Circuit riding in Ascension Parish

Yesterday, the Louisiana First Circuit announced that one of its panels (Judges Guidry, Holdridge, and Chutz) will be riding circuit on November 2, holding oral arguments at the brand new Ascension Parish Courthouse in Gonzales. To view the docket of cases to be argued in Gonzales, follow this link.

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).