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).