Persuasive Legal Writing: Anything New Since Aristotle?
At a recent conference1 hosted by the Rutgers School of Law, this question was debated by a group of legal writing professionals and other communication experts. The daylong dialogue was inspired by Professor Michael R. Smith’s new edition of his unique text, Advanced Legal Writing: Theories and Strategies in Persuasive Writing.2 Using Aristotle’s categories of logos, pathos, and ethos, Smith’s book comprehensively analyzes every aspect of legal persuasion.
In Smith’s concluding chapter, he raises a vexing challenge for zealous advocates. He questions whether “[t]he lawyer-as-advocate is nothing more than a legal prostitute....”3 After summarizing numerous responses to this challenge, Smith gives his own answer. Professional legal advocacy is justified because it is based on, and therefore furthers, the rule of law:
Smith contrasts this dedication to the rule of law with “narrative reasoning,” advocacy based on value judgments derived from cultural narratives. He cites Linda H. Edwards’ detailed analysis5 of “narrative reasoning,” advocacy that depends heavily on the story of the case. In contrast to logical arguments, these arguments use stories that tap into the decision-maker’s emotions and intuitive sense of justice.
For legal writers seeking to persuade, the choice sometimes seems to be between a logic-based rule of law and an emotion-laden story. Logos and pathos often seem opposed. As Smith acknowledges, “...sometimes a result dictated by the rule of law or applicable precedent may appear unfair or unjust in terms of the emotional facts of the case and the morals those facts implicate.”6
This brings us to the question: Does the most persuasive legal writing rely primarily on reason or emotion?
The classic rule-based argument to a court is almost always syllogistic. Aristotle is credited with the formula:
In legal argument, the major premise states the rule of law; the minor premise states the relevant facts; the conclusion follows. Here is an example from tort law:
Bryan Garner calls a syllogism “the basis of all logical thought.”7 Similarly, Lloyd Weintreb acknowledges that the dominant model for legal reasoning “is built of determinant rules linked by logical inference, the correctness of which can, at least in principle, be ascertained.”8 It seems to follow that in the courts, deductive logic prevails, that the most persuasive legal writing relies on reason.
But at the recent Rutgers conference, members of the “Pathos Panel” were not convinced. They claimed that “[t]here is no way to use logos to compel a result in the most interesting cases,”9 and “the reality [is] that the persuasive strength of logos is largely based on emotion....”10 Emotional arguments are more compelling because they use narrative reasoning; they emphasize the facts. In legal argument, these arguments succeed by analogizing the client’s story to the facts of a controlling precedent.
As Weintreb demonstrates in his lucid book, “Analogical arguments are...especially prominent in legal reasoning, so much so that they are regarded as its hallmark.”11
Weintreb demonstrates the fact-based analogical reasoning with a common law decision from the age of steam-power, Adams v. New Jersey Steamboat Company.12 Adams was a steamboat passenger on an overnight trip from New York to Albany. Although he had locked the door and windows of his stateroom, someone managed to reach through a window during the night and steal Adams’ money.
Adams sued the steamboat company and won a jury verdict. The lower court’s judgment was affirmed. But the steamboat company appealed to the New York Court of Appeal. The issue in the high court was whether the jury had been correctly instructed that defendant was liable as an insurer, the rule for innkeepers.
Analogizing steamers carrying passengers to inns with guests, the court held that the jury instruction was correct. A steamboat is “a floating inn” that differs in no essential respect. As with guests staying at inns, the steamboat passenger procures and pays for a room for the same reasons. Both guests and passengers are vulnerable to the same risk of fraud and plunder. Accordingly, both have a peculiar (special) relationship with the host. The legal relations that the steamboat carrier establishes with the passenger cannot be distinguished from those that exist between the hotelkeeper and the guests. “The two relations, if not identical, bear such a close analogy to each other that the same rule of responsibility should apply.”13
The Adams court also considered and rejected the counter-analogy, the precedents holding that railroads are not insurers of their passengers’ property but only obligated under the negligence standard. The court distinguished the relations between a steamboat operator and its passengers from those between a railroad and its sleeping car passengers. Essentially, the steamboat operator takes entire charge of the traveler by assigning a private room for exclusive use. But railroads provide limited sleeping accommodations to a few passengers in a car with open berths. Moreover, railroads have never been held to the insurer standard.14
As Weintreb explains, arguing by analogy is not the same as using deductive reasoning. By relying on facts and common sense, the advocate appeals to the decision-maker’s experience of the world. The advocate depends upon the belief that the capacity for analogy is hardwired in us. Ideally, this capacity is honed in law school where students learn with the case method. Weintreb observes,
The advocate, in turn, uses fact-based analogical reasoning to appeal to the decision-maker’s “general sense” of the correct judgment. This general sense is encompassed in Linda Edwards’ concept of “narrative reasoning,” which is broader than emotion. Analogical fact-based argument also taps into the decision-maker’s values and moral sense.
So, what is our answer? Logos or pathos? I like Professor Kathryn Stanchi’s wise conclusion in her Rutgers presentation: “[W]hile the categories [of logos and pathos] may have some utility, it is important for lawyers to recognize how thin the boundaries are between these categories.” Reason and emotion form the double helix of argument.16 Thus, narrative reasoning by factual analogy promotes the rule of law; pathos persuades within logos.
1 “A Dialogue about Persuasion in Legal Writing and Lawyering,” September 19, 2008. The conference was described as “an interactive series of panels based in classical rhetoric and inspired by the unique textbook that teaches law students and lawyers to reflect on the persuasive impact of our lawyering strategies.”
2 Michael R. Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing (2d Ed. 2008).
3 Id. at 343.
4 Id. at 369 (emphasis added).
5 Id. at 368, n.71 (citing Linda H. Edwards, The Convergence of Analogical and Dialectic Imagination in Legal Discourse, 20 Legal Stud. F. 7 (1996)).
6 Id. at 370.
7 Bryan A. Garner, The Winning Brief, 74 (1996).
8 Lloyd L. Weintreb, Legal Reasoning: The Use of Analogy in Legal Argument, 5 (2005).
9 Steven D. Jamar, Howard University School of Law.
10 Kathryn M. Stanchi, Temple University, Beasley School of Law.
11 Weintreb, supra note 8, 4.
12 Adams v. New Jersey Steamboat Company, 151 N.Y. 163 (1896).
13 Id. at 170.
14 Id. at 168-69.
15 Weintreb, supra note 8, 145.
16 Rutgers panelist Professor James A. Lupo, Northwestern University School of Law, gets the credit for this metaphor.