Pathos: the appeal to emotion
The place to win an appeal

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).

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