Employing Ethos

Of Aristotle’s three persuasive strategies, ethos is the most difficult to explain. Ethos is essentially persuasion through the author’s good character. Many believe ethos is the most important of the persuasive techniques—unless the reader trusts and believes the author, the author’s attempts at logos and pathos will fail. 

Various writing techniques fall under the ethos umbrella including accurately citing authority, addressing bad facts and bad law, making the court aware of adverse authority, and avoiding attacks on other parties or the court.

Perhaps no brief better demonstrates how to deal with adverse authority than Jeremy Simmons’s brief in Simmons v. Roper. In his brief, Simmons argues that the death penalty is cruel and unusual punishment for minor offenders. But the Supreme Court had addressed that issue in 1989 in Stanford v. Kentucky—and found the death penalty was not cruel and unusual punishment for minor offenders. So Simmons takes the stare decisis head-on and argues that the death penalty became cruel and unusual for a minor offender as a result of the “evolving standards” of decency. He analogizes his situation to that of Daryl Atkins, a mentally retarded offender, who was sentenced to death. In Atkins v. Virginia, decided in 2002, the Court had reversed its prior course on the death penalty for mentally retarded offenders, and Simmons hopes the Court would do the same in his case:

As Atkins demonstrates, stare decisis is no bar to reconsideration of the holding in Stanford. Petitioner's argument to the contrary simply fails to acknowledge that the standards of decency embodied in the Eighth Amendment evolve “as public opinion becomes enlightened by a humane justice.” The very nature of the Eighth Amendment accordingly requires that the principle of stare decisis yield - as it did in Atkins - to compelling evidence that society's values have changed. Because such compelling evidence is present in this case, the judgment of the Missouri Supreme Court should be affirmed.

Roper v. Simmons, 543 U.S. 551 (2005) (No. 03-633), 2004 WL 1947812, at *13 (internal citations and quotes omitted).

When he was a litigator, John Roberts faced some bad facts in representing Alaska against the EPA. You may recall that Alaska had designated Low NOx as the Best Available Control Technology (BACT) for a new generator at a large mine. The EPA thought that the more-expensive SCR technology was BACT. Unfortunately for Alaska, it had initially designated SCR as BACT and later changed its opinion—some would say because it was yielding to pressure from the mine. Roberts addresses the bad fact but tries to minimize it:

The EPA also noted that [Alaska] had found SCR “economically feasible” in its preliminary [report]. [Alaska’s] decision at that time to accept [the mine’s] emissions-netting proposal, however, had mooted any need to consider the impact of SCR costs, and in fact [Alaska] in the preliminary [report] did not analyze recent BACT decisions for similar sources or the site-specific cost considerations of imposing SCR. The decision in the final [report] not to rely on emissions savings necessitated such analysis and led to a more informed weighing of economic impacts.

Alaska Dept. of Envtl. Conservation v. United States Envtl. Prot. Agency, 540 U.S. 461 (2004) (No. 02-658), 2003 WL 2010655, at *43 n.13 (internal citations and quotes omitted).

Roberts also builds ethos by avoiding attacks on the Ninth Circuit or any individual judges—Roberts argues that the Ninth Circuit erred, but he avoids charged, disrespectful language:

The Ninth Circuit's decision that the State had only “initial responsibility” while the EPA had “ultimate authority” to make that determination introduces disabling uncertainty and confusion into the allocation of responsibility.

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The Ninth Circuit's decision-requiring the States to go into federal court to challenge the EPA's invalidation of a BACT determination-also improperly shifts the burden of persuasion from the EPA to the States, undermining the deference to which a State's decision is entitled.

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By allowing the EPA to short-circuit the state review process in this case, the Ninth Circuit also deprived Alaska of the opportunity to adequately defend its permit decision.

Id. at *36-37

You can use ethos to your advantage by following these tips:

-Address bad law or bad facts head on. You’ll gain credibility with the court by answering questions you know the court will ask. Argue that the bad facts don’t impact the outcome. Argue that unfavorable case law is distinguishable or an unhelpful statute is inapplicable to the facts of your case. Your candor will make you more credible, and by being the first to tell the court about the potential problems with your client’s case, you’ll also gain the added advantage of taking the wind out of your opponent’s sails

-Cite authority correctly. Make sure a case really says what you think it says before you cite it. And don’t use ellipses or other devices to improperly alter quotes. You’ll lose all credibility with the court if you mis-cite authority in an attempt to further your position. If you cite a case that’s been overturned on another ground, be sure to add a parenthetical to that effect. If you cite a dissenting opinion, note that through a parenthetical as well. Authority is the foundation law, so make sure you’ve provided the court with accurate authority.

-Use an appropriate tone. Avoid colloquialisms, informal words, and excessive artificial emphasis (bolding, italicizing, and underlining). Spell-check your document, include page numbers, make sure the font style and size are consistent, and follow the local rules. These things make you look like you care about being a professional. And courts take professionals seriously.  

-Avoid charged words when referring to an opposing party or the court. You should avoid these types of words: liar, foolish, absurd, crazy, kangaroo court, and the like. Of course, you can (and should) point out why an unfavorable case was decided incorrectly or is unpersuasive, why a lower court erred, or why a party’s testimony is not consistent with the facts, but do so in a respectful way.