The American Journal of Trial Advocacy is published by the Cumberland school of law, Samford University. I highly recommend the publication for plaintiff trial lawyers. The subscription is a modest $24 per year: Contact them at firstname.lastname@example.org. The summer 2013 issue has an article by Edward D. Ohlaum “Authentic Advocacy: Lawyering with Character.” Some of his observations I thought repeating were these.
Aristotle taught that there were three means of effecting persuasion. “The man who is to be in command of them must, it is clear, be able (1) to reason logically, (2) to understand human character and goodness in their various forms in (3) to understand the emotions – that is, to name them and describe them, to know their causes in the way in which they are excited.” The Greeks believed that the three components of persuasion were “logos” – the logic of the argument based on a well-reasoned theory of the case. The second was “pathos” – a passionately delivered an emotionally resonant presentation. The third component was “ethos” – ethical discipline.
The ancient Greek teaching about persuasion seems very relevant and true today. Certainly our evidence must be presented rationally and logically. The passion of the advocate and obvious belief in their cause is a significant factor in the persuasive nature of the case we present. Both of these components are clearly important and significant parts of persuasion. The concept of ethos is the character of the applicant as seen by the jury. It is the prism through which the jury will view what we say. Aristotle claimed that our perception of the speakers character influences how believable or convincing we find the person to be and accept what they say. This seems to me to simply be an acknowledgment that the jury evaluates the presentation made by the applicant in large part on the basis of the credibility of the speaker. We tend to accept what is offered by those we trust. A trial is often a contest of credibility and trust between sides as well as between advocates. Mr. Ohlbaum argues that when we attack our adversary unfairly in an insulting way we violate the rule of ethos and lose credibility. He suggests that condescending comments and personal attacks on our opponent undermine our credibility. He also suggests that the dynamics of cross examination are important with regard to this matter. Interrupting and arguing with the witness in unprofessional way reflects on our credibility.
He suggests some ways to control the witness in a respectful and professional manner:
1. Give the witness another opportunity to answer correctly by simply asking the question in exactly the same way again
2. Get an agreement from witness: “so, we can agree, after you left the meeting, you failed to report the incident?”
3. Take the explanation off the table: “regardless of what you say you did when you left, you didn’t report the incident, did you?”
4. Question the witness’s fairness: “do you understand that I am asking you whether you failed to report the incident and not why you left the meeting?”
5. Question the witnesses understanding: “do you understand the difference between my questions about whether you reported yesterday in a question of why you left the meeting?”
In a footnote the author quotes from the outstanding advocate Michael Tigar. He recommends what Tigar calls the “do you believe in America” cross-examination:
Q. I understand you’ve already told the jury that. But you understand that the jury has to decide this case?
Q. You don’t mind my asking these questions do you?
A. I suppose not
Q. Neither you nor I are going to decide this case are we? That’s the jury’s job, don’t you agree?
Q. That’s the American way, isn’t it – to give both sides a fair chance?
Q. Well, then, let me go back to this group of photos I picked out for you to look at and I’ll ask my question again.
The author acknowledges the obvious fact that the credibility of the advocate needs to be transferred and applied to the client. Juries identify clients with lawyers. Good advocates show identification with their clients by interaction during the trial. Conferring, touching, and referring to the client at appropriate times during the trial draws the client into the reservoir of credibility which the advocate hopefully has created with the jury.
The Greeks were right and we need to make modern application of their concepts of persuasion. I think this does include ethos and character of the advocate. I think it is particularly true today that jurors are offended by unprofessional conduct especially personal attacks on ones opponent. If we are going to persuade we need to be trusted and we aren’t going to be trusted if we aren’t credible. Credibility depends upon how our true character is perceived. Being a genuine human being is an essential part of credibility.
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