February 05, 2019

At the Heart of Persuasive Writing: Rhetoric Theory from Aristotle to Toulmin

By Jill Wheaton

The goal of this session was to use ideas behind old and new rhetoric theory to improve legal writing.  Prof. Tim Terrell of Emory University Law School presented this panel, beginning with this formula:  persuasive effort needed = distance x resistance.  In brief writing you can reduce the amount of persuasive effort you will need to exert by using three techniques.  First, reducing the “distance” from your goal by convincing the court that the law is already where you want it to be, and you aren’t asking it to do much.  Second, reducing the judge’s resistance by making: (a) obstacles less difficult, (b) the goal more attractive, and (c) your company along the way more agreeable.  Third, by applying the first two techniques, you are simultaneously increasing the distance and resistance the judge perceives in your opponent’s argument.  The goal is to convince the judge that the road to your desired outcome is short and smooth, while the road to your opponent’s desired outcome is long and bumpy.  Use of the principles behind Greek rhetoric theory can help in this process. 

Under Greek rhetoric theory there are three elements of persuasive speaking and writing:  the speaker/writer, the argument, and the audience/reader.  The speaker should command an attractive ethos.  In Ancient Greece this meant someone the audience looked up to, who was prestigious.  For a modern-day litigator, this means integrity, credibility, and professionalism.   

The argument needs to have both logos and axios.  Logos is plausible reasoning, which leaves the reader no choice but to agree with you.  For the litigator, this is a consistent and coherent legal story supported by citations to case law which, at the same time, acknowledges the constraints the court is under.  Axios is the worthiness of the result; it makes the reader also want to agree with you.  For the litigator, this is a principled result within the law, one that makes the judge feel that the outcome you are seeking is not only legally correct, but also just. 

The audience requires pathos.  In Ancient Greece, that was the invocation of emotion by the speaker telling the audience how it should feel.  For the current litigator, it is to evoke emotion, letting the listener reach a reaction themselves rather than telling them how to react.  For example, rather than telling the court that a witness lied, show it the testimony and other evidence that leads the court to reach that conclusion itself.  And to make the road less rocky, avoid personal attacks on opposing counsel or on the lower court.

Prof. Terrell then addressed the three elements of judicial “attitude”.  Judges:  1) want to do justice, and want to do it (2) safely and (3) quickly.  The best introduction to a brief addresses all three of these elements.  It first tells the court why this case or issue is before it, and why the court should care.  This is the “big picture” analysis, also going towards the axios.  The introduction then gives a “laser focus” of what you are asking the court to do and the basis for that result, i.e., the logos.  The goal of any brief should be to make the issue and outcome seem as simple as possible.  The second and third goals are achieved by illustrating to the court why the precedent requires your result, and by presenting the arguments in such a way that your brief can be an outline or roadmap for the court’s opinion. 

He concluded with a discussion of “Toulmin logic”, a modern approach to Greek rhetoric theory developed by British logician Stephen Toulmin.  This theory assumes that all readers come to a document with two hostile attitudes – skepticism and risk aversion.  To get over the first of these, a brief writer must tell the court what the issue is, why it should care, and why the result you are seeking is the logical outcome.  This is done by setting forth:  (1) the claim – the conclusion you are requesting; (2) the data – the fact(s) that support your claim; (3) the warrant – the “principle or rule on the basis of which you are asserting that the data supports the claim”; (4) and the backing – the valid authority supporting the warrant.  The latter can also include policy reasons to convince the court of the justness of the relief sought.  To meet the second point, the brief must convince the court that what you are asking for is reasonable, and safe, that is, not likely to be reversed.  This includes responding to or anticipating the arguments made by the other side or questions by the court, and heading them off proactively.

This excellent presentation provided a new approach to brief writing by opening the audience’s eyes to the old, but tried and true ways of advocacy.

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Jill Wheaton

Jill Wheaton is a member of Dykema Gossett, resident in the Ann Arbor, Michigan office.  She is the chair of the firm’s nationwide Appellate Practice team.  Ms. Wheaton is a member of the Council of Appellate Lawyers Executive Board and a past Chair of the State Bar of Michigan Appellate Practice Section Council.