Three Keys to Creating Winning Arguments: Pathos, Logos, and Ethos

Posted on December 11, 2023 in Uncategorized

By Steven Esptein, Esq., Barket, Epstein, Kearon, Aldea & LoTurco, LLP (www.barketepstein.com)

How simple, how obvious, it was the solution. By late December, 2022, it became apparent that the New York Giants would finally be returning to the playoffs. On Christmas eve, however, the Giants lost to the Vikings in the final minutes of the game, and fans, including myself, became worried that the team did not, in fact, have what was required to return to the Super Bowl. The Giant's last Super Bowl appearance was ten years earlier, in 2012, when they beat Tom Brady and the New England Patriots, and the team had not even won a playoff game since. Fans and radio talk show hosts all wondered just what it would take to get the Giants back to the Super Bowl. And then, like a bolt of lightning, the answer came to me ...the bacon-wrapped breadsticks, of course! I knew the answer, and the team would once again be destined for a championship. The reasoning was clear. I just needed to make the bacon-wrapped breadsticks. That is right. Bacon-wrapped breadsticks.

It started in 2011, during that historic playoff run. The game was in Green Bay when no one thought the Giants had a chance against the Packers, certainly not at Lambeau Field, and certainly not in January. I invited my friend Tom over to watch the game, and made a treat that I knew he would enjoy, even in defeat— bacon-wrapped breadsticks. A culinary delight! Crispy bacon bathed in a sugary ham glaze, wrapped around an Italian breadstick and baked in the oven. Tom enjoyed them thoroughly. But, more importantly, the game ended in a Giants victory. Tom returned to my living room a week later to watch the Giants defeat the 49ers in the NFC Championship game in overtime and, of course, I served the bacon-wrapped breadsticks once again. It became clear to me and Tom that the reason these improbable wins were occurring was not the team or the coaching of Tom Coughlin; it was the bacon wrapped breadsticks. The rest is history. Eli Manning led the team on a last-minute score, and the Giants won the Super Bowl. But Eli could not have done it alone. No. He had the help of the bacon- wrapped breadsticks. Surely, if I made those same treats in 2022, the Giants would win once again.

This reasoning, while perhaps humorous, exemplifies the logical fallacy called post hoc ergo proptor hoc – the assumption that one thing caused another merely because the first thing preceded the other.¹ Flawed logical reasoning, such as this, is highly unlikely to persuade others. Sound logical reasoning, on the other hand, which is persuasive is one of the most essential tools for the trial attorney.

Trial attorneys advocate for the resolution of a conflict. Two opposing sides meet in a battlefield called court. The lawyers who represent each side are warriors, and communication skills are their weapons. Trial skills are taught throughout the United States, and much attention is focused on the who, what, when and why, and the arts of opening statements, direct and cross examination, and summation. Too often ignored is the how. How do we, as attorneys, communicate and persuade others to think and act in the courtroom?

Understanding how to apply pathos, logos, and ethos, can help. This article, therefore, aims to provide attorneys with a brief overview of pathos, logos, and ethos, and offer some examples of ways to integrate these key concepts into trial advocacy.

Aristotle taught that a speaker's ability to persuade is based on how well the speaker appeals to the audience in three different areas: pathos, logos, and ethos. This is commonly referred to as the rhetorical triangle. Pathos is what drives listeners to act. It is an appeal to the emotions, beliefs, and values of the listener. Pathos is the focus of the role of the audience in the argument.² Logos appeals to reason. It is the argument itself and incorporates logic and reasoning into its effectiveness. Ethos is the credibility of the communicator; an appeal connected to the persuader's character or knowledge. This is especially critical in arguments pertaining to the sciences where knowledge of certain facts is not commonplace.

The use of Pathos requires a close examination of the receiver of the message and the emotions that generate action. It requires a willingness to accept the limitations of the power we each have to persuade others. Law school -- and even more, becoming a member of a Bar -- invites the pitfall of ego into the power to persuade. For years, I believed that I had the ability to persuade others because I could make an argument that drives others to act. The power, I believed, was in me. But that power lies elsewhere. Effective persuasion requires an understanding of the motivation of the audience to listen and be persuaded.³

By understanding pathos, we can look at various components of a trial through a new lens. In jury selection, for example, an understanding of pathos teaches that we must talk less and listen more. This skill is especially important in jurisdictions where time to communicate with a jury is limited. Avoid the ego-driven desire to educate your audience. You cannot educate an audience, unless and until the audience is prepared to listen to the information you provide and incorporate the information into their analysis.

Jurors are motivated by a desire to be correct. During jury selection, therefore, find out how jurors endeavor to make correct decisions in their everyday lives. That will lead you to a pathway to persuade them. Perhaps your case involves expert witness testimony, as many cases dealing with forensic science do. In these cases, it is essential to find jurors who will be able to listen to and evaluate an opinion. Ask what the juror does in his or her work or home setting to evaluate an opinion? If the juror answers by using words such as corroboration or consistency, let these words become part of your theme and your “trigger words.”

Trigger words convey emotion, and people act more with their emotions than with their thoughts. Emotional trigger words are valuable tools that help the audience to actively engage and lead to the successful utilization of the power of pathos in persuasion.

The argument that the Giants would win games if only I made bacon-wrapped breadsticks is logos gone wrong, and errors in logical reasoning result in lost opportunities to make powerful arguments as well as the loss of the lawyer's credibility. Further, once recognized, flawed logic will also generate a negative emotional response in the listener.

Once the jury is in the position to listen and incorporate information into their analysis of issues in the case, the time has arrived to harness the power of logos and lead them to your conclusion. Logical reasoning is the heart of your theory of the case. It is your story. While there are many forms of logical reasoning, this article will discuss the three most commonly used, syllogism, primacy and recency, and trilogy.

The syllogism is a form of logical reasoning that incorporates a major premise (usually pertaining to a universal truth); a minor premise (which expands on that truth); and a conclusion, which naturally follows from the truth of the two premises. Syllogisms use deductive reasoning and move from the general to the specific. Syllogisms are particularly effective when opposing inductive arguments, which, by contrast, move from the specific to the general.⁴

Cases involving the forensic sciences present excellent opportunities to use the power of the syllogism. The aim of science, after all, is to build knowledge, and, through the use of the scientific method, construct scientific premises. Scientific premises aid arguments that go from the general to the specific. Below is an example of a syllogism that argues a specific conclusion from a general scientific principal:

• Major Premise - Measuring devices that are not properly calibrated do not produce reliable results.
• Minor Premise - The chromatograph was not properly calibrated.
• Conclusion - Therefore, the chromatograph did not produce...

The beauty of this type of logical reasoning lies in its simplicity and how it allows the listener to reach the conclusion without being told how to think. People are easily persuaded when they come to the conclusion themselves. The proof of a major and minor premise is far more likely to lead the jury to the conclusion you want the jury to reach than is telling the jury how to think.

A second example is the power of primacy and recency, which can also help a trial attorney win arguments, especially when combined with some other form of logical reasoning. The primacy/recency effect is the theory that information presented at the beginning and end of a learning event is retained more thoroughly by the listener, and, in turn, is more persuasive, than information presented in the middle.⁵ It is why classic movies have an opening scene that captures the audience's attention and close with a scene that is so memorable you can actually picture it in your mind years after watching. Your communication to a jury should be guided by the same understanding. For example, never start your summation with thanking the jury for their service, unless you want the jury to go into the deliberation room and think about how polite you were, but how your client is guilty, nonetheless. By the time of closing arguments, you have worked long and hard on your theory of case, and you should have constructed a short statement that communicates what the jury should do and why they should do it. Give it to them up front, and then return to it at the conclusion of your summation.

Use the power of primacy and recency throughout your case. It is most obviously an effective tool to use at the beginning and end of an opening statement or a closing argument, but is equally important when considering how to construct and organize a cross or direct examination.

The third example of logical reasoning, or logos, is the power of the trilogy. It is why I presented logos using three examples. The human brain has an uncanny ability to organize and process more efficiently in threes, and using trilogies, therefore, will naturally allow the listener to compartmentalize and retain thoughts.⁶ This is essential in a trial because the persuasion does not occur when the facts and arguments are presented. The persuasion is most critical later on when the jury begins to deliberate. Unless you are like Spock from Star Trek and possess the power of the Vulcan mind meld, or can use hypnosis without the judge stopping you, the power of the trilogy may be your greatest asset when attempting to get the jury to not only listen to and be persuaded by your arguments, but to retain your proven facts or arguments and then call upon them when the time to deliberate.

Finally, in addition to pathos and logos, the rhetorical triangle suggests that ethos, an appeal connected to the persuader's character or knowledge, will also help convince an audience. This, again, is most evident in making arguments pertaining to the sciences, where the knowledge of certain facts and concepts is not commonplace. In these cases, it is essential that you, as the attorney, understand and have a command of the materials. Once the jury considers you to be knowledgeable and trustworthy, the jury can also be convinced to trust your argument. The only person in the courtroom that should have more knowledge or be more trustworthy than you is your expert witness.

When utilizing the power of ethos, word choice is critical. Using scientific words that are not commonplace in the juries' lexicon will surely demonstrate that you are knowledgeable, but it may also distance you from the jury and confuse them. Be sure that if you use scientific vocabulary, you also talk to the jury in plain language. For example, after questioning your expert about infrared spectroscopy, ask permission to call it breath testing from that point forward. Be part of the jury. Do not place yourself above them. Never ask a witness to explain something to a jury -- instead ask the witness to explain it to us.

Trial skills are an art, not a science, and each attorney must use his or her own style and abilities to paint a canvass in an authentic way. This article discusses only some of the ways an attorney can use the rhetorical triangle to advocate more persuasively. Use of these persuasive techniques will get you farther down the field than all the bacon-wrapped breadsticks you can eat.

---

1. See Pinto, R.C. (2001). Post Hoc, Ergo Propter Hoc. In: Argument, Inference and Dialectic. Argumentation Library, vol 4. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-0783-1_6

2. Rapp, Christof, “Aristotle’s Rhetoric,” The Stanford Encyclopedia of Philosophy (Spring 2022 Ed.), Edward N. Zalta (ed.)

3. Petty, R.E. & CACIOPPO, J.T. (1986) The elaboration. Likelihood model of persuasion. Advances in Experimental Social Psychology.

4. An example of inductive reasoning often used by the prosecution in a criminal case is the argument that by establishing the truth of several facts (x, y, and z), the People establish proof beyond a reasonable doubt that the accused committed the crime. Inductive reasoning asks the listener to go from specific assertions to general conclusions.

5. Data WORKS Curriculum, The Primacy Recency Effect, March 18, 2023. https://dataworks-ed.com/blog/2014/08/the-primacyrecency-effect/

6. Barkley, Elizabeth F., Major, Claire H. Interactive Lecturing : A Handbook for College Faculty, 2018, Wiley.