ETHOS AND WRITTEN ADVOCACY
Every writer, by the way he uses language, reveals something of his spirit,
his habits, his capacities, his bias. . . .
No writer long remains incognito.
William Strunk, Jr. & E.B. White, The Elements of Style 66-67 (3d ed. 1979)
Lawyers are advocates. We write to persuade. We marshal the facts of our case. We master the law. We think logically. We argue logically. With logic and organization, we take the facts and the law and craft our arguments.
But advocacy is more than sound reasoning. Logic alone does not convince those whom we seek to persuade.
Persuasion begins with ourselves. Our audience evaluates us and our writing. If we are not credible and trustworthy, the logic of our arguments will not convince others. People are persuaded by those whom they trust. They are persuaded by the advocate’s ethos.
What is ethos? To the Greeks and Romans, ethos was one of the three forms of classical persuasion, the other two being pathos and logos. Ethos refers to the advocate’s credibility. Pathos concerns the emotions that the advocate instills in others. Logos is the logic that supports the advocate’s argument.
Of the three, ethos was the most important to the ancients. In his treatise on rhetoric, Aristotle wrote that most people are not persuaded by logic or by emotion but by the ethos — the character — of the advocate.
How does an advocate establish ethos? Aristotle believed that credibility is projected by the advocate’s moral character, intelligence, and good will. Aristotle wrote that good character commands attention and engenders trust. Character results from the practice of a virtuous life. According to Aristotle, a credible advocate is good-natured and upright, kind and calm, and never grasping.
Intelligence also conveys ethos. Aristotle wrote that an advocate demonstrates intelligence through the mastery of the subject and the display of good sense in combination with convincing arguments. Through knowledge and sound reasoning, an advocate gains the audience’s trust in the advocate’s judgments. This trust is enhanced by the advocate’s use of apt examples or parallels.
Good will is the last component of ethos according to Aristotle. Good will is the advocate’s attitude toward the audience. Through good will, an advocate projects concern for the audience’s viewpoint and respects their intelligence, sincerity, and common sense.
THE ROMAN VIEW
The Romans also emphasized the importance of ethos in advocacy. Both Cicero and Quintilian stressed the importance of the advocate’s character in the art of persuasion. Among the virtues Cicero found important to an advocate’s ethos were a mild tone, a modest countenance, and gentle language. Quintilian agreed. He wrote that an advocate’s credibility depended, in part, on avoiding any impression that the advocate was abusive, malignant, or slanderous toward any individual or institution that might incite the disapproval of judges.
ETHOS AND WRITTEN ADVOCACY
The lessons of Aristotle, Cicero, and Quintilian remain applicable today. Lawyers must not ignore the place of ethos in persuasion and advocacy. If we are not credible, we cannot persuade. How then can we demonstrate our ethos to our audience, the court? The three elements of ethos identified by Aristotle — character, intelligence, and good will — provide a guide. They find expression in the following principles that all lawyers should strive to follow in their memoranda and briefs.
- The law and the facts should be fairly and accurately stated.
- Every statement of fact should be supported by a record reference.
- Overstatement, exaggeration, and deception should be avoided.
- The applicable standard of review should be stated and heeded.
- Adverse facts and other weaknesses should be acknowledged.
- Testimony, documents, and rulings should be accurately — not selectively — quoted.
- Inferences from the evidence should be identified as deductions, and not as evidence.
- Every statement of law should be supported with a pinpoint cite to the authority.
- Controlling legal precedent should be cited, including directly adverse legal authority.
- Case law should be chosen because of its holding and not its quotability.
- Briefs should be proofread and cite-checked.
- All applicable rules of procedure should be followed.
- A civil and courteous tone should be maintained.
- Sincerity and conviction should mark the writing.
- The case should be viewed from the court’s perspective and provide the court with all the means necessary to render a decision.
- Ego should be sublimated.
- Inflammatory language and personal attacks on opposing counsel and the lower court should be exorcised.
These principles are self-evident. They are found in the rules, case law, and the ethical standards. They are also a matter of common sense. But no matter how obvious they may be, their importance must not be dismissed. Our practice must be guided by these principles. When we ignore them, we are unable to convince and persuade. Without them, we have a negative ethos.
CIVILITY AND ETHOS
The lawyer who accurately and fairly states the law and the facts engages the court’s trust. The lawyer who misstates the facts or the law, on the other hand, loses the court’s confidence. And, once lost, the court’s trust is difficult to regain both in the case at hand and in later cases. A lawyer who does not have the court’s confidence has a far heavier burden of persuasion than the lawyer who has credibility with the court.
The same is no less true of the measure of a lawyer’s conduct toward opposing counsel and the court. Zealous advocacy does not require personal attacks and harsh language. Boorish behavior is no substitute for a calm, conscientious presentation of the law and the facts. Civility is not a sign of weakness.
In the end, effective written advocacy requires respect for the importance of ethos. The principles of ethos that guided advocates in ancient Athens and Rome are no less, if not more, important today. An advocate should be a good lawyer writing and speaking well. Our memoranda and briefs are a reflection of ourselves. Absent ethos, we are not worthy of the court’s trust. And, without trust and credibility, we cannot persuade.
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For additional reading on ethos and advocacy, see Michael Frost, Ethos, Pathos & Legal Audience, 99 DICK. L. REV. 85 (1994), Martin E. Aspen, Let Us Be “Officers of the Court,” 83 A.B.A.J. 94 (July 1997), and John C. Shepherd & Jordan B. Cherrick, Advocacy and Emotion, 138 F.R.D. 619 (1991) (eloquently addressing the “pathos” component of advocacy).