Persuasion: Why classical rhetoric?

In yesterday’s post, I talked about classical rhetoric, taught by Aristotle and centuries of teachers since, and its importance to persuasion. Before diving into the specifics of classical rhetoric and its three modes of persuasion (logos, pathos, and ethos), it may be worthwhile to answer the question whether those ancient lessons are still relevant and useful today. As Edward Corbett and Robert Connors acknowledge, “Practices and principles should not be retained simply because they are venerable with age. They should be retained only if they prove relevant and useful.”

We can best answer the question for ourselves by observing the things that influence decision making, both in others and in ourselves. In deciding whether to buy something or whom to vote for, we are influenced in varying degrees by cold logic (logos), by emotion (pathos), or our degree of trust in the seller or the candidate (ethos). When Aristotle wrote about rhetoric 2,300 years ago, he didn’t make it up; he wrote down what he observed in the people around him.

We can also see how, throughout history, influential people have used classical rhetoric to inspire and persuade others. In their book on rhetoric, Corbett and Connors cites numerous examples, analyzing speeches and writings of James Madison, John F. Kennedy, Martin Luther King, and others through the late 20th century. 

But we don’t have to open a book to see the principles of classical rhetoric at work. Every day, we are bombarded by advertisements, and advertisers use these principles in the extreme. The first example of rhetoric at work in Corbett and Connors’ book is a magazine ad by Hewlett Packard promoting a color printer. And in his book on advanced legal writing, Professor Michael Smith introduces law students to classical rhetoric by analyzing TV commercials.

In short, people famous for inspiring and persuading others have used principles of classical rhetoric. Today, professionals in the business of persuading us to buy stuff use the same principles. These ancient principles have survived for a couple thousand years for one reason: they work.

Sources and authorities for this post:

  • Edward P.J. Corbett and Robert J. Connors, Classical Rhetoric for the Modern Student 24 (4th ed. 1999).
  • Michael R. Smith, Advanced Legal Writing 9–11 (2d ed. 2008).

The three modes of persuasion

Aristotle-master-Marketer-260x300Brief writing and oral argument have one purpose: persuasion. See this blog post of 16 Sept. 2020. But how do we persuade? We have 2,500 years of accumulated wisdom to answer this question. Aristotle identified three means of persuasion: (1) logos, the appeal to reason; (2) pathos, the appeal to emotion; and (3) ethos, the appeal of the speaker’s or writer’s character and credibility. Most of us learned a bit of logos in law school. Experience has taught some of us the importance of pathos. Only a few of us appreciate the importance of ethos.

My opinion: to be a great advocate, you need all three. As time and workload allow, I hope to explore all three here, beginning with a refresher on logos or logic. Meanwhile, here are authorities for this post and recommendations for future reading:

  • Michael R. Smith, Advanced Legal Writing, at 9–10 (2d ed. 2008).
  • Edward P.J. Corbett and Robert J. Connors, Classical Rhetoric for the Modern Student, at 31–32 (4th ed. 1999).

(Aristotle photo credit here.)

U.S. 5th Circuit statistics

The U.S. Fifth Circuit clerk’s office has published a 41-page booklet of statistics about the court’s workload and disposition of cases for July 2020 through June 2021. It’s chock full of numbers and graphs showing the numbers of cases, oral arguments, and manner of disposition. The reversal rates are on page 25 (7.6%, compared with 6.8% for July 2019 - June 2020). The numbers for en banc rehearing are on page 39 (175 petitions filed, 10 granted). To see the reports for prior years, follow this link.

Are briefing rules THAT important?

Both the Federal Rules of Appellate procedure and the Louisiana Uniform Rules for Courts of Appeal include detailed rules governing the form and content of briefs. Both sets of rules contain, among other things, detailed requirements for the brief’s jurisdictional statement. In essence, both sets of rules require the brief only only to say that the court has jurisdiction, but also to prove jurisdiction, with citations to specific statutes establishing jurisdiction and citations to the parts of the record establishing jurisdictional facts (e.g., finality of judgment being appealed, timeliness of the appeal).

What happens when parties fail to heed these rules? In Louisiana, the offending party may have its brief rejected and may be ordered to file a corrected brief. The same goes in the U.S. Fifth Circuit. We’re relatively lucky. The U.S. Seventh Circuit is less tolerant, especially when it comes to jurisdictional statements in both appellants’ and appellees’ briefs. Consider these cases:

  • In a diversity case, the appellant’s jurisdictional statement failed to properly allege the citizenshihps of two party corporations. The appellees’ jurisdictional statement failed to correct the appellants’ error, saying instead that the appellant’s statement was complete. Counsel for both sides were publicly reprimanded in a published opinion. Cincinnati Ins. Co. v. Eastern Atlantic Co., 260 F.3d 742, 747–48 (7th Cir. 2001).
  • A pro se plaintiff-appellant’s brief failed to include a jurisdictional statement. The defendants-appellees’ jurisdictional statement said only that the district court had diversity jurisdiction but failed properly state the parties’ citizenships. The court ordered the defendants-appellees’ counsel to show cause why they shouldn’t be sanctioned. Meyerson v. Harrah's East Chicago Casino, 299 F.3d 616, 617–18 (7th Cir. 2002).
  • Both sides’ jurisdictional statements failed to allege the parties’ citizenships. Although the court didn’t sanction them, it described their “insouciance about jurisdiction” as “unprofessional.” Wise v. Wachovia Securities, LLC, 450 F.3d 265, 266–67 (7th Cir. 2002).
  • Finding both sides’ jurisdictional statements to be insufficient, the court described their briefing as “malpractice” and ordered both sides’ counsel to show cause why they shouldn’t be sanctioned. Smoot v. Mazda Motors of America, Inc., 469 F.3d 675, 676–78 (7th Cir. 2006).
  • In one appeal, the appellee’s brief said that the appellant’s jurisdicitonal statement was “correct,” but failed to state whether it was “complete.” In another appeal, the appellee’s brief said that the appellant’s jurisdictional statement was “complete,” but failed to state whether it was “correct.” Both briefs violated a local rule requiring the appellee to state whether the appellant’s jurisdictional statement was both complete and correct. The chief judge ordered both appellees’ briefs to be stricken and ordered the appellees to file new briefs with adequate jurisdictional statements. Baez-Sanchez v. Sessions and Bishop v. Air Line Pilots Ass’n, 862 F..3d 638 (7th Cir. 2017).

Always be persuasive

Today, I heard a lawyer describe his approach to briefing as “always be arguing.” Throughout my career, I’ve encountered many lawyers who use the same approach. My approach is different: it’s “always be persuasive.” Persuasion includes argument, but it also involves a lot more. I could talk for an hour on this topic (in fact, I have). For this little blog post, however, I’ll offer just this film clip, a parable on how misplaced argument can be counterproductive toward persuasion.

Invaluable advice for LASC writ applications

I recently came across an old Louisiana Bar Journal article with invaluable advice for anyone thinking about applying for writs to the Louisiana Supreme Court: Get That Writ: Civil Writ Practice Before the Louisiana Supreme Court, 48 La. B.J. 120 (Aug. 2000), by Isaac H. Ryan and J. Todd Benson. If you’ve never read this article before, do yourself a favor: download it and read it.

One important thing the article discusses is the Louisiana Supreme Court’s own perception of its role as one of developing the law rather than correcting errors. An understanding of that role is essential in persuading the court that your case is the one out of a hundred (give or take) worthy of the court’s attention. The Louisiana Supreme Court itself discussed its own view of its role in Boudreaux v. State, DOTD, 2001-1329, p. 3 and id. nn. 5–6 (La. 2/26/02), 815 So. 2d 7, 9–10 and id. nn. 5–6.

Also worth reading are cases in which the Louisiana Supreme Court overcomes its reluctance to exercise its supervisory jurisdiction over other Louisiana courts. The theme in these cases is the Supreme Court’s respect for the independence of other courts in fulfilling their roles and to avoid usurping appellate jurisdiction not conferred on the Supreme Court by the Louisiana Constitution. These cases include the following:

And of course, anyone filing a writ application in the Louisiana Supreme Court must know and follow La. Supreme Ct. Rule X § 1(a).

CLE materials on persuasive brief writing

Last July, I gave a CLE presentation on making every part of a brief persuasive—even the cover. This presentation built on one I participated in last March with Kelly Becker and Judge Sandra Cabrina Jenkins (La. 4th Cir.). While the March presentation was based on the Louisiana rules, the July presentation was based on the federal rules. For anyone who’s interested, here are links to the July version of the written materials and slide presentation