Tuesday, April 15, 2014

Pathos and Persuasion

Pathos is the use of emotion to persuade. Unsurprisingly, pathos is often employed in criminal cases. Last week we looked at Simmons's brief in the Roper case, where Simmons argued that the death penalty is cruel and unusual punishment for minor offenders. Look at Simmons's lawyer’s use of pathos to try to convince the Supreme Court to overturn prior 8th Amendment precedent:

“[P]olice arrested Simmons, a 17-year-old high-school junior with no previous criminal convictions, at his school. Simmons was taken to the police station, where he waived his Miranda rights and was interrogated. Simmons initially denied involvement in the crime. After nearly two hours of interrogation, during which police accused him of lying, falsely told him that Benjamin had confessed, and explained that he might face the death penalty and that it would be in his interest to cooper-ate, Simmons began to cry and asked to speak to one of the detectives alone.”

Brief for Respondent, Roper v. Simmons, 543 U.S. 551 (2005) (No. 03-633), 2004 WL 1947812, at *1-2 (internal citations and quotes omitted).

You can also use pathos to make other parties look bad. Simmons’s counsel focuses on the bad behavior of an adult “friend” of Simmons, Moomey, who claimed to have heard Simmons planning the murder but did nothing to stop it:

Moomey - a 29-year-old who had served a prison sentence for burglary and assault - testified that he had a party at his house “every night” at which he drank until he passed out. A group of neighborhood teenagers, often including Simmons…attended these “parties.” Moomey explained that the teenagers wanted to come to his house “because most of them get picked on [b]y their parents,” and that they mowed his lawn, cleaned his house and car, and gave him rides in return for being allowed to “hang out” with him. The teenagers called themselves the “Thunder Cats,” and referred to Moomey as “Thunder Dad”
Moomey claimed that, at one of the nightly parties at his house before the murder, he had heard Simmons…discussing a plan to burglarize a house and kill the occupants, and that Simmons had told the others that “they could do it and not get charged for it because they are juveniles.” Moomey also alleged that, on the evening of September 9, Simmons had come to Moomey's house and told him that he had killed Mrs. Crook because she had seen his face. Moomey admitted that, after this conversation, he failed to contact the police until he was told they had his name and wanted to talk to him and that he was concerned about testifying because he believed he was being investigated in connection with the murder.

Id. at *3.

Look how Simmons’s counsel employs pathos. He doesn't say outright: Simmons is a scared kid and Moomey—whose testimony all but ensured Simmons received the death penalty—is an unsavory person who used kids like Simmons. Instead, he uses pathos subtly to lead the reader to that conclusion.

You can also use pathos effectively in other types of cases. Last week we looked at logos in John Roberts’s brief in the Alaska v. EPA case. Roberts also uses pathos effectively in that brief:

The partnership agreement between [native Inupiats and the Mine owner] provides for the training and employment of a local work-force, with caps on annual production to ensure long-term employment opportunities for the region. The agreement also provides for a committee of local Inupiat elders to oversee mining operations. The committee is authorized, for instance, to close the mine's road to protect migrating caribou. Royalty payments to…Inupiat shareholders-to be shared in part with all other Alaska Native corporations-are expected to total about $1 billion over the life of the mine. With nearly 600 workers, the mine's payroll represents over a quarter of the borough's wage base. Prior to the mine's opening, the average wage in the borough was well below the state average; a year after its opening, the borough's average exceeded that of the State.

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 *9 (internal citations and quotes omitted).

Follow these tips to use maximize pathos:

-Too much of a good thing…is too much. Pathos is best employed subtly. Avoid over-the-top pathos. Use facts, not adjectives and adverbs, to evoke an emotional response in the reader. Remember how John Roberts uses pathos in the Alaska brief. Nowhere does Roberts say: “The Red Dog Mine is critically important to Alaska and its great citizens—many of whom are heartbreakingly destitute.” Instead, he describes, in detail, how important the Red Dog Mine is to Alaska and its residents by talking about all the things the Mine does for the region—provides jobs, protects wildlife, pays native tribes for use of their land etc. The Roberts brief doesn’t hit the reader over the head with pathos. Instead, the Roberts method leads the reader to the writer’s conclusion. And the result is just what Roberts wants—for the reader to believe that the Red Dog Mine is very important and provides many benefits to Alaska.

-Pathos isn’t going to get you far without logos. Your client can be the most sympathetic party in the world, but unless the client’s position is legally and logically sound, pathos likely won’t do you much good. You must be sure to discuss the legal principals at issue and explain how the law supports your sympathetic client’s position.

-Consider starting with context, not facts. Good litigators use pathos to “set the scene” for their legal arguments. Look how Roberts does that in the Alaska brief—he doesn’t start by talking about Low NOx, SCR, or BACT. Instead, he sets the scene by talking about how the mine was discovered and what the mine means to Alaska. Then, when the reader has a “fuzzy feeling” about the mine, Roberts launches into a discussion of how Alaska handled the permitting decision.     

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