In the second semester of their first year, students make the switch from objective to persuasive writing. It’s a switch that some students welcome because they like the idea of arguing a position rather than having to be objective. As students learn, though, there’s more to persuasive writing—or at least more to good persuasive writing—than just arguing a position.
At their core, objective and persuasive legal writing share many of the same traits, such as maintaining the small scale organizational paradigm we refer to as CREAC (a/k/a IRAC). Because lawyers use that paradigm to advance their arguments, students need to master it, which makes the structure of the argument look similar to objective writing. But students need to make other, subtler changes in their writing (and thinking) to persuade effectively. It’s often challenging to succinctly explain these more subtle differences, but one easy way is to introduce the “why” behind the differences, which in turn helps explain those differences. Good persuasive writing argues a position by using a combination of three ancient rhetorical techniques: logos, ethos, and pathos.
The first technique is logos, which means logic. Persuasive writing that uses logos uses, where appropriate, literal or historical analogies as well as factual and historical data. Such writing contains citations to authorities or experts. As scholars Ruth Anne Robbins, Steve Johansen, and Ken Chestek say in their new book, Your Client’s Story: Persuasive Legal Writing 21 (2013), “Logos makes your audience think you are right.”
Logos is the easiest technique to understand when referring to legal writing. It makes sense that a persuasive legal document use logic to persuade readers, and logos is undoubtedly the starting point for a persuasive argument. But it’s just the start.
The second technique is ethos, which deals with the credibility of the writer. When we read something from someone we trust, we are more likely to believe what she is saying. As Professors Robbins, Johansen, and Chestek tell us, “[E]thos makes your audience trust you are right.” Id. Building ethos in legal writing means the writer must focus on providing substantively sound analyses and arguments, while appropriately acknowledging contrary law and counterarguments, but also focus on creating a professional and polished document that is error-free.
The final technique is pathos, which deals with emotions—specifically, with empathy. When a speaker or writer uses pathos, he is appealing to his audience’s sense of empathy for his position or his client. He may use vivid, concrete language and examples. He might use figurative language, such as alliteration, similes, or metaphors. “[P]athos makes your audience feel you are right.” Id.
There are two kinds of pathos: emotional substance and medium mood control. The speaker or writer uses emotional substance when she is trying to elicit an emotional response from her audience. One example that I use to illustrate this idea is the ten-second public service announcement popular in the late 1980s. The spot opens with butter sizzling in a hot pan. There’s an ominous bit of music and a serious voice tells you, “This is drugs.” We then see an egg cracked into the pan, which is so hot that the white of the egg cooks immediately. The voice returns. “This is your brain on drugs. [pause] Any questions?” Here, it seems clear that the viewer is to feel fear and to act on that fear: Look what happens to your brain when you use drugs! Don’t use drugs!
In legal writing, we use the emotional substance pathos when we attempt to create empathy for our client and when we appeal to grander themes of fairness or justice.
Another kind of pathos is medium mood control. “Medium” here applies to the mode of communication and how that mode of communication affects the audience’s mood. Humor is an often used technique. When the reader feels happy, he is more likely to be receptive to (and, thus, persuaded by) the reader’s message.
Humor is quite difficult to use in legal writing. Instead, a legal writer effectively uses medium mood control by using an appropriate tone, carefully choosing words, and avoiding techniques that might irritate a reader (like poor citation or sloppy organization, among others). Most of the things a writer does to build her ethos apply here as well: a well-crafted, accurate brief is a joy to read, which makes a reader happy to read it.
The trick with pathos is to use emotion appropriately. Heavy-handed pathos can make your reader feel manipulated, and no one likes to feel manipulated.
Using all three techniques in concert helps create a strong persuasive piece. The example I like to use is Martin Luther King, Jr.’s Letter from Birmingham Jail. In that piece, Dr. King so brilliantly uses all three rhetorical techniques to create a compelling and persuasive document that explains why white clergy’s call for gradualism in the early days of the civil rights movement was misguided. If you haven’t yet read the Letter, I encourage you to do so and to locate for yourself how and where Dr. King uses logos, ethos, and pathos.
How a reader responds to a writer’s persuasive techniques depends on two things: what the reader’s stock structures are and how the reader is being asked to respond.
First, when people are asked to confront new situations or new information, they rely on their stock structures to make sense of that situation or information. See Robbins et al., Your Client’s Story 29-36. Stock structures (which are known by different names in different fields) are our stereotyped models of experiences. Stock structures provide useful cognitive short cuts because we can quickly assess a new situation and know how we should respond based on our experiences with that situation. But—and it’s a very important “but”—while there may be some commonality between them, stock structures differ for different people because our experiences differ.
Second, readers can be asked to respond in one of three ways: response shaping, response reinforcing, and response changing. See id. Where a reader has little knowledge or experience and is being persuaded to adopt a new position, the writer has a chance to shape the reader’s response, to help build some stock structures, if you will. This situation does not occur frequently in law, mostly with issues of first impression. A reader who is being asked to simply reinforce what he already knows or has experienced may be easily persuaded. For example, when a trial judge is asked to simply apply precedent, she is being asked to simply reinforce what she knows she needs to do. More difficult is the reader who is being asked to respond by changing his existing beliefs in order to form new ones. Such a reader will need more persuasion.
As our students begin their foray into persuasive writing, share with them some of your favorite persuasive pieces (legal or otherwise).
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I just came across a footnote in Law and Language: Effective Symbols of Community, by Harold Berman (edited by John Witte, Jr.), which explains the relationship between syllogistic logic and legal argument:
73 n.23 (quoted in part, internal citations omitted). Syllogism is the starting point for discussing legal logic. I find it helpful to explain the structure of legal argument in the context of major premise/minor premise/conclusion. But Berman highlights the very point that allows two sides of an argument to be presented: that the major premises “are subject to qualification.” The same point could be made of the minor premises–the facts.