Elements of Persuasion
Logic, evidence (Logos)
This is what Aristotle considered the “proper task” of argument, because it tends to be
the least subjective and most convincing element of rhetoric. As mentioned earlier, it is the weight of
evidence that tips the scales in Lady Justice’s hand. Ensuring that weight is properly considered is the
advocate’s role, but it is the weight of the logos, evidence, that will win the day.
In general, judges and jurors like their data hard. They are impressed by phone records,
x-ray slides, photographs, bill statements and contracts and the like.
Emotional appeal, (Pathos)
The successful litigant must seize upon a judge or juror’s emotions, creating a certain
gut-level appeal to win them over to his argument. If she is skillful, she can also arouse fear or hostility
toward her opposition even while drawing back warm fuzzy sympathetic feelings toward her position.
“Forensic psychologists,” writes Houston lawyer Howard L.
Nations. “Tell us that jurors make decisions on emotion and then sift through the evidence in order to
validate their emotional responses with logic. In other words, jurors make a decision with their right brain
and validate it with their left brain.”
Credibility, believability (Ethos)
Establishing credibility is the litigant’s first task in presenting a case and is really
an extension of the rule of first impressions (see below). Until that credibility can be accomplished, it is
impossible to take the eyes of judge and jury off the litigant and fix them on the evidence where they
should be directed. The litigant must assert herself as one who is authentically trustworthy, fair-minded,
A person with credibility is also a fair and respectful person and demonstrates this by
treating his opponent’s case as important and by respecting the wishes and instructions of the judge. She
also shows she is fair by not wasting the jury’s or the court’s time with trivial detours and unimportant
detail. These are some of the traits a judge or jury will see in the credible litigant:
repetitive (as permitted)
- Stands to
the judge/jury’s attention with good posture and eye contact
- Is direct
and to the point
- Faces the
person being addressed
During trial, the persuasive litigant operates in the judge or juror’s frame of reference
rather than forcing the opposite. To enhance your persuasive abilities, try as early as possible to determine
the frames of reference for the judge and jury. Observe the judge in pretrial activities if you can and evaluate
the jurors as individuals during jury selection. Listen to their language for any clues to what would be
important. The more you can learn and discover about the jurors and judges presiding over your case, the better
you can enhance their perceptions of similarities, one of the keys to persuasion. Again, it is always better to
operate within their frames of reference than to require them to operate in yours.
The litigant must be constantly aware of her message and presentation, specifically, how that
message is registering on her target audience, the judge and jury. By employing a balanced presentation,
concentrating rhetorical effort at each of Aristotle’s three elements, the litigant will deliver a compelling,
persuasive case and all but ensure victory in court.