According to ancient Greeks, persuasive advocacy has three parts: (a) logos, or logic, the case’s theory; (c) pathos, the passionate delivery of the case; and (c) ethos, or ethical discipline. All three parts are displayed well in Atticus Finch’s closing argument in Harper Lee’s classic novel, To Kill a Mockingbird. Atticus defends Tom Robinson, an African American falsely accused of raping a white teenager.
Logos: The state had no medical evidence that a rape occurred, and the victim’s bruises could not have been inflicted by Tom, who suffered a childhood injury to his left hand.
Pathos: Atticus reminds the jury that the prosecution is assuming they are racists and believe all of the witnesses’ lies.
The witnesses for the State, with the exception of the sheriff of Lincoln County, have presented themselves to you gentlemen—to this Court—in the cynical confidence that their testimony would not be doubted; confident that you gentlemen would go along with them on the assumption, the evil assumption, that all negroes lie; all negroes are basically immoral beings; all negro men are not to be trusted around our women, an assumption that one associates with minds of their caliber, and which is in itself, gentlemen, a lie—which I do not need to point out to you.
Ethos: Having calmly and measuredly disproved the prosecution’s case, Atticus states the ethical imperative.
I have nothing but pity in my heart for the Chief Witness for the State. She is the victim of cruel poverty and ignorance. But, my pity does not extend so far as to her putting a man's life at stake, which she has done in an effort to get rid of her own guilt.
Racism wins, but Atticus’s character and credibility are compelling. They are what everyone remembers.
Ethos is character, what is seen by the jury. The key to effective advocacy requires a commitment to ethics, professionalism, and authenticity. Character determines what we say and how we say it. Character is the prism through which our words and conduct are reconsidered and refined by others. If you have character, you have credibility.
What we say, how we say it, and the message itself convey an impression of character. Independent of effective advocacy, there are multiple reasons to be ethical. First, we must follow the professional rules of conduct. Violation of these rules leads to sanctions, including suspension and loss of license. Second, trial lawyers make opponents pay for unprofessional conduct. Revealing someone has withheld discovery results in opposing counsel losing credibility. Bad trial conduct leads to adverse inferences by the judge and jury and makes for easy and effective argument by an adversary. Third, to be ethical is simply the right thing to do.
People believe who they like. Effective advocates are viewed by the jury as an authority on the facts, a person who does not mislead, and is likable and worthy of respect. Lose credibility and effectiveness is lost. Once credibility is lost, it cannot be regained. Summarily stated, the advocate’s character influences the decision-maker, informs the presentation, and envelops the client.
Scorched-earth conduct calls the advocate’s character into question. Carelessness with the facts invites disaster. Opponents use it, and the jury no longer believes you or your client. It encourages your opponent to take advantage of your sloppiness.
A lawyer's ethos is displayed constantly in an arena where little can be hidden and everything can be questioned. In the unforgiving courtroom, a lawyer's shoddy behavior rarely survives inferences and argument. By example and speech, the authentic advocate subdues the lesser adversary and wins over the judge and jury. A lawyer with character is persuasive because authentic advocacy strengthens the message and the presentation.
Character does not mean a lack of emotion. When the facts or circumstances support it or the emotional content is intrinsic to the case, anger and outrage—in a controlled manner—may be expressed. Again, the jury must not be offended by a client’s lawyer because your client pays the consequences of a lawyer’s bad behavior.
Many ways demonstrate lack of courtroom ethos. First, never abuse a witness. Juries understand the goal of cross-examination: neutralization of an opposing party or its witness. When the witness speculates, evades, or wanders, the witness wins. Inexperienced and scorched-earth lawyers smugly get in the witness’s face, shout, and make facial gestures. Usually these tactics fail. They reveal the questioner is a bully, and juries do not like bullies.
When a lawyer argues with and interrupts a witness, he comes across as unprofessional and defeated. If the witness is not being truthful, the jury usually detects it. You can obtain payback at closing by arguing deficiencies, inconsistencies, and convenient memory lapses. If a lawyer cannot control his own emotions, he cannot control the witness. The cross-examining lawyer looks even worse if the witness is humble or scared or appears honest to the jury. If a witness is not answering the question, hold the witness accountable but maintain a professional demeanor.
Consider the “magic grits” scene in My Cousin Vinny. Joe Pesci discredits a witness’s testimony without calling him a liar or being overbearing:
Q. Well, how much time was they in the store?
A. Five minutes.
Q. Five minutes? Are you sure? Did you look at your watch?
Q. Oh, oh, oh, I'm sorry, you testified earlier that the boys went into the store and you had just begun to make breakfast. You were just ready to eat, and you heard a gunshot. That’s right, I’m sorry. So, obviously it takes you five minutes to make breakfast.
A. That's right.
Q. Right, so you knew that. Uh, do you remember what you had?
A. Eggs and grits.
Q. Eggs and grits. I like grits too. How do you cook your grits? You like 'em regular, creamy, or al dente?
A. Just regular, I guess.
Q. Regular? Hmm. Instant grits?
A. No self-respecting Southerner uses instant grits. I take pride in my grits.
Q. So, Mr. Tipton, how could it take you five minutes to cook your grits, when it takes the entire grit-eating world twenty minutes?
A. I don't know. I'm a fast cook, I guess.
Q. I'm sorry, I was all the way over here, I couldn't hear you. Did you say you’re a fast cook, that’s it? Are we to believe that boiling water soaks into a grit faster in your kitchen than in any place on the face of the earth?
A. I don't know.
If you want to see a bullying questioner, watch Anatomy of a Murder. George C. Scott is perfect as the prosecutor foiled by his own false confidence.
Second, never lead your own witness beyond the limits. Juries appreciate hearing what happened from a witness, not a lawyer. When a lawyer coaches a witness improperly, he or she makes trust in the witness an issue. Experienced trial lawyers rarely object to a leading examination unless they believe the witness cannot testify without being led. At closing, argue that what the jury heard is counsel testifying, that the witness is not knowledgeable, and that counsel does not trust his own witness.
Third, do not attack opposing counsel. Without certain proof and an obligation to report under the rules of professional conduct, never make comments that put your adversary in a bad light. Judges and juries do not favor whiners and lawyers attempting to make something of nothing. The empty complaining distracts from the presentation of your case.
Fourth, always be humble, and remember you are humble for good cause. The judge and jury notice arrogance and do not appreciate it. Retired Boston attorney Jerome Facher was an excellent trial lawyer who lectured on trial advocacy at Harvard Law School for many years. His famous admonition was memorialized in Jonathan Harr’s best-seller A Civil Action:
The single greatest liability a lawyer can have is pride. Pride... Pride has lost more cases than lousy evidence, idiot witnesses and a hanging judge all put together. There is absolutely no place in a courtroom for pride.
Fifth, never mischaracterize a witness’s testimony. A witness may not read a document out of context, or use merely a part of the document, to mislead a jury. Federal Rule of Evidence 106: “If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time.”
This situation occurs when counsel uses part of a document to make the jury believe a witness has made a prior inconsistent statement. If the witness’s testimony follows a prior statement considering other parts of the writing, Federal Rule 106 may be invoked to read the remainder of the document. The judge and jury are likely to believe counsel was attempting to mislead by reading only a part of the document.
Sixth, a lawyer’s credibility is transferred to his client. Juries identify clients with counsel. The client must be introduced at voir dire, and more is said about the client during opening. The jury also observes how a lawyer interacts with a client during the trial. They look for facial gestures, pats, and chats. Walk with the client to the chair, say his or her name proudly, and treat the client with deference.
Let clients be who they are, with all their strengths and weaknesses. Respect your client. Juries love genuine.
In the early nineties, a case was tried at Birmingham’s federal courthouse involving a trucking company and driver who blew by a stop sign. His vehicle was noisy and the radio was blasting. While crossing the railroad track, the trailer was hit by a train. The conductor sued the driver and trucking company claiming personal injury and post-traumatic stress disorder.
The conductor was not likable and his story was not plausible. He suffered minimal physical injury and had recovered money from a collateral source for his injury. He had served as a non-combat Marine in the Middle East and been exposed to men dying, but he attributed his anxiety to falling on the engine floor during the wreck. The conductor wanted “a large amount of money” for his soft-tissue injuries and alleged psychological injury.
The unlicensed driver was called to the stand. He could not pass the commercial driving exam because of learning disabilities, diminished capacity, and anxiety. He looked down when he spoke. The driver admitted he was driving, was not paying attention, and must not have looked before he crossed the tracks. “What happened?” his lawyer asked. He said he was challenged, called “special” in school, and did the best he could. It was his only accident, and he had learned his lesson. He regretted the incident and would not be driving a truck any longer. The conductor’s counsel smartly asked no questions.
A woman in the jury wiped a tear. A cattle farmer nodded and crossed his arms. The retired power pole repairman smiled. Trial lawyers understand these three persons at multiple levels. Most were raised by parents who rose early and worked long hours. To try cases successfully, one has to have an appetite for work. Like the farmer and power pole repairman, they do not like someone attempting to exploit a situation, to claim a non-existent injury.
The cattle farmer and the power pole repairer, the leaders of the jury, worked hard, earned their pay, and had no use for malingering or laziness. They appreciated truth and transparency, preferred one keep the characterizations and arguments, and let them return to their business and family. The trucking company obtained a defense verdict.
The importance of authenticity cannot be overemphasized. Juries hate phonies. It starts with being who you are. Read the trial transcripts of Clarence Darrow, Edward Bennett Williams, Fred Bartlit, Bobby Lee Cook, and Michael Tigar. These lawyers speak in simple declaratory sentences and use easily understood words. Their opening statements, witness examinations, and closing arguments are articulate and compelling. Their trial advocacy reflects understanding of critical facts and human nature, the ability to distill a dispute to its essence, and how to invoke morality. Our success in life depends on our character. Under the scrutiny and high stakes of a jury trial, it is especially true.
Keywords: litigation, trial practice, blind cross-examination, cross-examination, tips for lawyers