Tuesday, April 8, 2014

Logos in Litigation

According to Aristotle, there are three types of persuasion: logos, ethos, and pathos. Logos is persuasion through reasoning and the effectiveness of supporting evidence. Because lawyers often rely heavily on precedent to support their positions, logos is used more often by lawyers than the other two techniques. But logos is about more than citing a case, explaining its holding, and telling the court it should follow that case. Logos is about convincing the court that your position is the only sound one.

When John Roberts was a litigator, he represented Alaska in a case against the EPA. Alaska intended to allow a mine, a large, private employer, to use a certain pollution control technology, Low NOx, on a new generator it had built. The EPA claimed that Alaska should have required a different control technology, SCR, and that Alaska acted arbitrarily and capriciously by finding Low NOx was the best available control technology (BACT). Alaska couldn’t dispute that installing SCR (rather than Low NOx) on the new generator would have resulted in lower emissions from that generator. But Alaska had struck a deal with the mine, and Roberts used the logic behind that deal throughout his brief:

Recognizing the mine’s unique and continuing impact on the regional economy of the Northwest Arctic Borough, [Alaska] determined that in light of SCR’s “excessive economic cost” —$2.9 million in capital costs with annual operating costs approaching $635,000—SCR was not economically feasible and that Low NOx was BACT for the MG-17 generator. Yet because [the mine] had agreed to install Low NOx on all its generators, [Alaska’s] permit decision was expected to result in lower overall NOx emissions than would occur if SCR—the EPA’s preferred technology—were installed only on the [new] generator.

Brief for Petitioner, Alaska Dept. of Environmental Conservation v. United States Environmental Protection Agency, 540 U.S. 461 (2004) (No. 02-658), 2003 WL 2010655, at *13 (internal citations and quotes omitted) (emphasis in original).

Roberts lost, but his argument is a wonderful example of the power of logos. Think of the logic: how can Alaska have acted arbitrarily and capriciously if the control technology it selected would result in lower overall emissions?

We see a different use of logos in a brief filed on behalf of Christopher Simmons, a man sentenced to death in Missouri for a murder he committed when he was 17 years old. Simmons argued that the death penalty was cruel and unusual punishment for adolescent offenders. In 1989, the Supreme Court had addressed that very issue in Stanford v. Kentucky, finding that the death penalty was not cruel and unusual punishment for those who were 16 or 17 years old when they committed the crime for which they were sentenced to death. So Simmons couldn’t rely on precedent—he was arguing for a change in the law. Eighth Amendment principles are measured by “evolving standards of decency.” What did Simmons do? He argued that the majority of states and the rest of the world recognize that the death penalty is cruel and unusual for those under age 18:

In the 15 years since [Stanford] that decision, advances in the scientific understanding of adolescent development, and the consistent movement by legislatures and juries away from imposition of death on juvenile offenders have demonstrated that capital punishment of those under 18 is inconsistent with our society's evolving standards of decency. The execution of juvenile offenders - like that of mentally retarded offenders is both disproportionate to their personal moral culpability and contrary to national and worldwide consensus.

Brief for Respondent, Roper v. Simmons, 543 U.S. 551 (2005) (No. 03-633), 2004 WL 1947812, at *10 (internal citations and quotes omitted).

Simmons backs up those assertions with statistics showing that since Stanford, numerous states and the federal government had disallowed the death penalty for juveniles and the execution of juvenile offenders had become increasingly rare, even if states that hadn’t outlawed the death penalty for juvenile offenders. And, perhaps even more effective, Simmons shows that executions of juveniles essentially ceased after 1989 in all except a few countries:

[Since 1990] only seven countries other than the United States are believed to have executed juvenile offenders: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China. Only Iran and Pakistan have executed more than one juvenile offender in that time. These sporadic and isolated executions of juvenile offenders are not countenanced even by the countries where they took place; all of them have either enacted prohibitions on the execution of juvenile offenders or publicly disavowed the practice.

Id. at *49.

Simmons’s logic is apparent—Can all other nations (except seven) be wrong?

How can you employ logos to persuade? Here are a few tips:

-Use peer pressure. If your jurisdiction hasn’t addressed an issue or if you’re arguing for a change in the law, cite all the states or circuits that have adopted the position you advocate.

-Rely on the effect of stare decisis. If a rule of law or interpretation you’re advocating is longstanding, highlight that. If a rule has been the law for 100 years, cite both old and new cases to show that multiple courts have considered the issue and decided it in a way that supports your client.

-Appeal to common sense. Just like Roberts, appeal to the common sense of the position you advocate.

-Target particular judges or justices. If you know a judge or justice’s background and leanings, use that in your favor. If you’re appealing to a textualist, make plain language/ordinary meaning arguments. Even better, cite previous orders or opinions by that judge or justice, even if those citations are only for general principles.        


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