Some lawyers see a tension between professionalism and zealous advocacy. I don’t. I think that the two go together, that we are most persuasive when we apply the highest standards of professionalism in our advocacy.
This truth becomes apparent when we consider ethos as a key to persuasion. In my October 25 post, I discussed ethos as a key to persuasion. Aristotle describes ethos as the audience’s perception of the speaker’s intelligence, high moral character, and benevolence. Those last two components—high moral character and benevolence—are what some of us have learned in our hours of professionalism CLE.
So how does an advocate show high moral character and benevolence? I can’t improve on the following quotable quotes, so I’ll just share them with you.
High moral character
Edward P.J. Corbett and Robert J. Connors, Classical Rhetoric for the Modern Student 73 (4th ed. 1999):
If a discourse is to reflect a person’s moral character, it must display an abhorrence of unscrupulous tactics and specious reasoning, a respect for the commonly acknowledged virtues, and an adamant integrity.
Michael R. Smith, Advanced Legal Writing 125–26 (2d ed. 2008):
To gain the confidence of their audiences, legal writers must demonstrate that they are of good moral character or at least that they are not of questionable moral character. If a reader believes that a writer is not above lying, cheating, deceiving, or misleading, then the reader will view the writer’s arguments with skepticism and doubt. Conversely, if a reader believes that a writer possesses good character—or at least if the reader has no reason to question the writer’s character—then the reader will be more receptive to the writer’s arguments and assertions.
There are several traits or characteristics that legal writers should project through their writing to demonstrate that they are of good moral character. These traits include:
Corbett and Connors at 73:
If the discourse is to manifest a person’s good will, it must display a person’s sincere interest in the welfare of the audience and a readiness to sacrifice any self-aggrandizement that conflicts with the benefit of others.
Id. at 143:
Good will in the context of persuasion refers to how an advocate feels or is disposed toward others involved in the matter under discussion. According to classical rhetoricians, a decision-maker will doubt the veracity of what an advocate has to say if the advocate does not appear to be well-disposed toward the decision-maker or toward another party that may be affected by the decision. If a decision-maker receives the impression that an advocate is angry at, resentful of, or otherwise malevolent toward the decision-maker or an adverse party, the decision-maker will likely be skeptical about the advocate’s advice on the matter; the advocate might, after all, be speaking not out of logic or a sense of justice, but out of spite and anger…. The concept of good will is based largely on folk psychology and common sense: We tend to doubt a person’s word if that person has ill-will toward us or toward another person who will be affected by the course of action we are being persuaded to take.