Let’s say you need to get your car repaired, and there are just four auto mechanics in town.
- is honest and wants the customer to be happy, but isn’t very smart.
- is smart and honest, but doesn’t care whether the customer is happy.
- is smart and wants the customer to be happy, but has a reputation for being dishonest.
- 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).