There are three "modes of persuasion" as purportedly defined and taught by Aristotle: "ethos," "pathos," and "logos." They are sometimes also referred to as "rhetorical appeals." Two initial observations are (1) that these are not taught enough in schools today, and (2) that they are worthy of consideration.
According to YourDictionary.com, the three modes are defined as follows:
"Ethos (sometimes referred to as an appeal to ethics), then, is used as a means of convincing an audience via the authority or credibility of the persuader, be it a notable or experienced figure in the field or even a popular celebrity.
Pathos (appeal to emotion) is a way of convincing an audience of an argument by creating an emotional response to an impassioned plea or a convincing story.
Logos (appeal to logic) is a way of persuading an audience with reason, using facts and figures."
There is a place for each in litigating a case. I have discussed these modes with exceptional attorneys over the years. Some deride or eschew one or more of these three, expressing a distinct personal preference for one over the others. When one hears those opinions, it may provide more insight to the speaker than to his or her favored mode. Arguably, each of the modes is equally appropriate and effective in persuasion, depending to some degree upon the identities of both the speaker and the listener.
There is seemingly a draw in injury litigation to Pathos. Commonly, there is a person(s) that has suffered significantly, through injury and the economic impacts that often follow. As an attorney, I heard more of these in personal injury than in workers' compensation litigation. Workers' compensation is not a perfect system and it does not provide perfect relief. But what it provides is statutorily defined. Possibly, the sympathy arguments are more persuasive in non-economic damage arguments like "pain and suffering" or "loss of consortium," and thus more prevalent there.
Personally, I more often heard of those dire economic impacts outside of workers' compensation where recovery was often years in the making. The description of several years of treatment and recovery, recounted in past tense to a jury, was both persuasive and powerful. By comparison, when a work injury interferes with the ability to earn income, workers' compensation generally provides a more rapid stream of benefits than personal injury litigation. There are still economic impacts, particularly in a claim that is totally denied and in which there have thus been no periodic indemnity payments by the time the trial occurs.
Personally, I more often heard of those dire economic impacts outside of workers' compensation where recovery was often years in the making. The description of several years of treatment and recovery, recounted in past tense to a jury, was both persuasive and powerful. By comparison, when a work injury interferes with the ability to earn income, workers' compensation generally provides a more rapid stream of benefits than personal injury litigation. There are still economic impacts, particularly in a claim that is totally denied and in which there have thus been no periodic indemnity payments by the time the trial occurs.
Pathos pulls at the heart. Everyone can be drawn to an emotional response, particularly by a skilled storyteller. There are attorneys who are masterful storytellers. They organize their evidence and present it in an order and manner that evokes sympathy and concern. In speech, their timing and cadence are focused on drawing the listener to a sympathetic reaction. Though it may be about sympathy, Pathos may also be about anger, inspiring the listener to action through a sense of exacting justice.
Certainly, Ethos is employed in litigation. There is strength perhaps in the expert witness who attended Harvard, who trained at some notable clinic or under a notable mentor, or who is "board certified" in some specialty or discipline. Effective advocates often spend significant time questioning such experts, detailing those experiences, and building the credibility of the expertise, credibility, or even celebrity. One line of questioning often engaged focuses on the frequency with which a practitioner treats a particular diagnosis or complaint. But Ethos is not limited to the witnesses presented.
There are also attorneys who employ Ethos with their own experience. Throughout the trial, they carefully make reference to their own personal expertise, knowledge, and training. As the storyteller, their credibility and experience may persuade the listener of the strength of the case being presented. Of course, arguments illustrating one's own strength or mentioning some perceived weakness of opposing counsel may be objectionable and inappropriate, but they are used. Through brazenness or subtlety, those arguments sometimes find their way in.
Ethos is also about character. Though the definitions focus on the "speaker," and rightly so, there is also Ethos in the client. Did the client do the "right thing," whether that client is an employer or an employee? The law may well commend those who act appropriately, have strong character, and observe ethics. Those arguments may be interwoven by the storyteller in explaining some of the procedural "why" or "how" a particular set of facts evolved to the point at which they stand at the time of trial.
Ethos is also about character. Though the definitions focus on the "speaker," and rightly so, there is also Ethos in the client. Did the client do the "right thing," whether that client is an employer or an employee? The law may well commend those who act appropriately, have strong character, and observe ethics. Those arguments may be interwoven by the storyteller in explaining some of the procedural "why" or "how" a particular set of facts evolved to the point at which they stand at the time of trial.
Logos relies upon facts and figures. Logos comes from the same root word as logic. It is Logos that we see drawing arguments back from what is felt to what is demonstrable. Logos may be popular in litigation because it is factual. Logos may allow the listener to reach a conclusion by deciding if something did or did not happen, or if it is or is not important to the debate. That "yes or no" analysis is perhaps a relief to the listener.
Another thing that may attract people to Logos is that facts may be more easily replicated or capable of verification. The x-ray shows a fracture, that is a fracture. Show the x-ray to ten doctors and it will still be a fracture. Logos is also the foundation of workers' compensation legal theories like the "logical cause doctrine," where various inferences and elements are demonstrated. In "logical cause" the attorney builds a factual foundation that leads to the conclusion that a particular cause resulted in the complained-of injury.
Which is the best method of persuasion?
It seems that this is similar to the "what is the most powerful branch of government" riddle with which they challenged us in grade school. And I would suggest the answer may be the same, essentially: "They are co-equal." None is the "best," but each may be better equipped or effective in a given situation, or with a particular listener(s). An effective advocate would do well to understand all three. Each might be the better path to success in a particular case, with a particular listener, but none is likely to be best with each and every situation or listener(s). An advocate should recognize what method she/he is employing, and that which is being used by the opposition.
The variety of approaches needed is a product of each mode being different, certainly. But, it is perhaps more the product of each listener being different. In a bench trial situation such as workers' compensation, it may therefore be productive to understand and consider the judge who is presiding over a particular case. Knowing how a particular judge will react to each of the modes would be powerful information for the attorney seeking to effectively represent a client.
Is the judge perceived as empathetic and/or sympathetic? Then a Pathos presentation may be the most persuasive and effective. This might center on the details of the actual injury and the extent of the various treatments. This might also focus on the symptoms and complaints that persist following treatment. Or, the arguments might focus on the efforts and engagement of the defense, explaining the challenges and the obstacles. Economic impacts involving lost income added familial burdens, and others might fit within this approach.
Do you believe that the judge is impressed by credentials and experience? If so, then the litigation plan may appropriately focus on education, training, and certification. Perhaps time would be well invested in exploring through testimony how many times an expert has diagnosed and treated a particular malady. The success of such treatments, or the probability of recurrence or relapse following various available treatment options might also be engaged through the testimony of an expert of repute, credentials, and experience.
If the judge is perceived as being persuaded by facts and figures, then Logos may be an important consideration. In this context, perhaps those could be used as primary arguments, or in support of opinions. Expert testimony is often seen as superficial, focused merely on conclusions. There is some tendency to rely upon the expert's conclusion. but Logos may suggest that it makes sense to have the expert testify about the path that led to the conclusions and opinions. What are the facts, the logic, and the support for the ultimate opinions?
Of course, it is not possible to really know a jury. First of all, the time spent together is simply too short. But, more critically, a jury is a conglomeration of people, attitudes, pre-dispositions, skills, and personalities. While a talented and experienced lawyer can effectively gauge or perhaps "read" a jury member, each is part of a greater whole. Each will participate in the decision process dynamically, dependent in part upon the contributions and personalities of the others involved. A jury is a collective group, and the group dynamics may be impractical to predict. Therefore, a lawyer cannot viably rely upon any of the modes to the exclusion of the others there. In a jury trial setting, all three modes must be included.
And it is perhaps best to merely adopt that overall mindset when preparing for litigation. Perhaps there is value in laying information so that there is at least some exposure of the emotions or perception (Pathos), reinforcement from the credentials of witnesses or speaker (Ethos), and some fundamental facts, figures, and logic to support the sought conclusions (Logos). Careful consideration and employment of all three will likely lead to the best chances of success. A carefully constructed presentation of evidence that understands and engages all three may provide a breadth that facilitates success.
Those who would persuade would do well to understand these thoughts of Aristotle, both in making their plans and in preparing to respond to the plans of their opponents. Perhaps a quick examination focused on these three is a good measure to evaluate one's preparation and plans just before trial.
Another thing that may attract people to Logos is that facts may be more easily replicated or capable of verification. The x-ray shows a fracture, that is a fracture. Show the x-ray to ten doctors and it will still be a fracture. Logos is also the foundation of workers' compensation legal theories like the "logical cause doctrine," where various inferences and elements are demonstrated. In "logical cause" the attorney builds a factual foundation that leads to the conclusion that a particular cause resulted in the complained-of injury.
Which is the best method of persuasion?
It seems that this is similar to the "what is the most powerful branch of government" riddle with which they challenged us in grade school. And I would suggest the answer may be the same, essentially: "They are co-equal." None is the "best," but each may be better equipped or effective in a given situation, or with a particular listener(s). An effective advocate would do well to understand all three. Each might be the better path to success in a particular case, with a particular listener, but none is likely to be best with each and every situation or listener(s). An advocate should recognize what method she/he is employing, and that which is being used by the opposition.
The variety of approaches needed is a product of each mode being different, certainly. But, it is perhaps more the product of each listener being different. In a bench trial situation such as workers' compensation, it may therefore be productive to understand and consider the judge who is presiding over a particular case. Knowing how a particular judge will react to each of the modes would be powerful information for the attorney seeking to effectively represent a client.
Is the judge perceived as empathetic and/or sympathetic? Then a Pathos presentation may be the most persuasive and effective. This might center on the details of the actual injury and the extent of the various treatments. This might also focus on the symptoms and complaints that persist following treatment. Or, the arguments might focus on the efforts and engagement of the defense, explaining the challenges and the obstacles. Economic impacts involving lost income added familial burdens, and others might fit within this approach.
Do you believe that the judge is impressed by credentials and experience? If so, then the litigation plan may appropriately focus on education, training, and certification. Perhaps time would be well invested in exploring through testimony how many times an expert has diagnosed and treated a particular malady. The success of such treatments, or the probability of recurrence or relapse following various available treatment options might also be engaged through the testimony of an expert of repute, credentials, and experience.
If the judge is perceived as being persuaded by facts and figures, then Logos may be an important consideration. In this context, perhaps those could be used as primary arguments, or in support of opinions. Expert testimony is often seen as superficial, focused merely on conclusions. There is some tendency to rely upon the expert's conclusion. but Logos may suggest that it makes sense to have the expert testify about the path that led to the conclusions and opinions. What are the facts, the logic, and the support for the ultimate opinions?
Of course, it is not possible to really know a jury. First of all, the time spent together is simply too short. But, more critically, a jury is a conglomeration of people, attitudes, pre-dispositions, skills, and personalities. While a talented and experienced lawyer can effectively gauge or perhaps "read" a jury member, each is part of a greater whole. Each will participate in the decision process dynamically, dependent in part upon the contributions and personalities of the others involved. A jury is a collective group, and the group dynamics may be impractical to predict. Therefore, a lawyer cannot viably rely upon any of the modes to the exclusion of the others there. In a jury trial setting, all three modes must be included.
And it is perhaps best to merely adopt that overall mindset when preparing for litigation. Perhaps there is value in laying information so that there is at least some exposure of the emotions or perception (Pathos), reinforcement from the credentials of witnesses or speaker (Ethos), and some fundamental facts, figures, and logic to support the sought conclusions (Logos). Careful consideration and employment of all three will likely lead to the best chances of success. A carefully constructed presentation of evidence that understands and engages all three may provide a breadth that facilitates success.
Those who would persuade would do well to understand these thoughts of Aristotle, both in making their plans and in preparing to respond to the plans of their opponents. Perhaps a quick examination focused on these three is a good measure to evaluate one's preparation and plans just before trial.
