Advocacy and Emotion
John C. Shepherd & Jordan B. Cherrick**
Advocates benefit from knowing the unique complementary relationship between reason and emotion. Persuading people requires an understanding of how they respond to emotional as well as logical arguments. The secret of successful advocacy is in using emotion effectively to persuade different audiences.
The term "emotion" should be broadly defined to encompass a vast range of human feelings. People express a variety of emotions and feelings in nearly all social settings. Consider the spectrum of emotional experiences. Waving a bloody shirt before an excited mob will provoke a strong and violent reaction. A soft-spoken but emotionally powerful eulogy about a beloved friend, delivered while holding the blood soaked garment, will create equally strong emotions of grief and sorrow in the hearts of the mourners. An inexperienced trial lawyer's dull and confusing closing argument in a complex business dispute will create negative feelings of boredom and frustration in the minds of the jurors. On the other hand, an accomplished advocate can communicate to the jurors the facts of the identical dispute in a way that will evoke positive emotions about justice and fairness in the marketplace.
Many lawyers are uncertain about the proper way to express emotion in the courtroom. Some mistakenly believe that subjective emotions cannot be trusted when presenting an argument involving objective legal doctrine. These lawyers apply to advocacy what Sir Edward Coke wrote about the law: "[R]eason is the life of the law, nay the common law itself is nothing else but reason; . . . ."1
Many scholars, however, disagree about the primacy of reason in the legal process. Justice Oliver Wendell Holmes, Jr. observed that "the life of the law has not been logic: it has been experience."2 Emotions play a central role in the human experience. As a distinguished English barrister has observed, "[M]ost human action is prompted by feeling . . . . [One distorts reality by suggesting that] emotion is an unreliable guide to a true decision on fact, and that there is therefore something suspect in evoking or displaying emotion."3
Strong emotions lie at the heart of the decision-making process in our system of justice. Judges and jurors alike want to feel that they have contributed to a "fair" or "just" result. They hope to savor the feeling at the conclusion of a case that they have satisfied an important moral duty by arriving at the "right" decision.
Some litigators acknowledge the importance of emotion in persuading lay members of a jury but discount its value in persuading a trial judge or an appellate court. They contend that judges do not respond favorably to emotional arguments as evidenced by the common judicial admonition to counsel during oral argument: "Do not make an emotional jury argument. Confine yourself to the facts and the law."
Lawyers who provoke this type of rebuke from the court, however, often merely demonstrate that they have awkwardly used emotion in their argument and have misunderstood their judicial audience. The truth is that like all other people, judges are moved by the right combination of reason and emotion. The great advocates understand this principle and are able to modify their presentations to meet the unique needs and personality characteristics of the jurists who are deciding their cases.
Judges themselves have acknowledged the importance of the proper use of emotion in an advocate's argument. Indeed, Lord Birkett has written: "Many opinions have been expressed from time to time about the character of the highest advocacy and the highest oratory. It would seem to be the view of those best qualified to judge that simplicity of speech, linked with the expression of the deepest feelings of mankind, has always had the power to stir men's blood in all ages of the world's history, . . . ."4
If you have any doubt about the central role of emotion in the art of advocacy, rely on Aristotle and Quintilian, those classic teachers of oratory and rhetoric. They taught that a persuasive written or oral presentation contains three elements:
ETHOS: The ethics, integrity, and character of the advocate;
PATHOS: The emotions that the advocate instills in the audience; and
LOGOS: The logic or reason that supports the advocate's argument.5
A modern litigator's success depends on applying the wisdom of these ancient philosophers. Emotion and reason are necessary elements of all persuasive arguments.
Know Your Audience
An advocate needs to know the audience before emotion can be used effectively as a tool of persuasion. This principle is supported by our experience that the more we know about the emotional and intellectual qualities of a person, the greater likelihood that we can successfully persuade.
Classical rhetoricians place supreme importance on the advocate's ability to understand the state of mind of the listener or reader. Indeed, one scholar defined rhetoric as the "art of adapting discourse, in harmony with its subject and occasion, to the requirement of a reader or hearer."6
This principle can be illustrated in a case involving catastrophic personal injuries. Counsel for the plaintiff might properly make a direct emotional appeal to gain the jury's sympathy for the plight of the client. If the case were tried before the court, however, the identical strategy might affront the trial judge. An argument to a judge requires counsel to engender emotion in a subtle and more skillful manner.
Litigators should focus their attention on understanding those persons—judges, jurors, arbitrators, administrative hearing officers and other decision-makers—who determine the fate of their clients' interests. Vast differences, of course, exist among the personalities of individual people. These differences require the advocate to consider carefully the manner in which emotion is used in argument.
Express Feeling through Storytelling
The emotions that underlie human conflict are contained in the facts or the "story" of your case. You cannot persuade another person unless you can communicate the facts in a simple, organized, and coherent fashion.
Chronology and plot form the essential elements of a good story. Advocates should pay close attention to these elements in describing the facts of their cases.
Chronology refers to the time sequence of the facts. A jury or judge will generally not understand the case unless the central events and characters are presented in a chronological fashion; start with the past and move forward to the present.
The plot explains why the characters acted and the events occurred as they did. Use your ingenuity to paint the best picture for your client by describing or alluding to the human emotions that motivated the behavior. Your goal is to stimulate the listener or reader intellectually and emotionally to thinking and feeling that your client's cause is just.
John D. Mooy, a renowned storyteller, explained the advocate's role this way:
Juries already possess all of the requisite intellect for deciding the outcome of any case, no matter how complex; they have the inherent ability to imagine and visualize. This is the first and most fundamental lesson of storytelling. In order to tell a successful story you must present your tale in a manner which enables the judge or jury to visualize your version of the facts. A most effective technique for helping your trier of fact visualize is to involve the judge or jury in the story itself.7
A good factual presentation will allow the jury to feel naturally the favorable emotions in your presentation. Describing the details of a plaintiff's accident and injuries, for example, is a far superior method of generating the jurors' sympathy and empathy for your client than making an outright emotional plea.
Lawyers who make direct appeals to the emotions of a jury are often unsuccessful. Jurors recognize their high moral obligation to dispense justice. They will perceive a purely emotional argument as cheap or sentimental and beneath the dignity of their now new, awesome duty. Jurors will wonder whether an advocate who relies so heavily on emotion is adopting this strategy because the case has no legal merit.
Another serious problem with a litigator's overt display of emotion is that the jurors may become so overwhelmed with feeling that they cannot use their intellect to analyze the legal issues and reach a proper verdict. Jurors who are emotionally exhausted may also lose their motivation to expend further the energy that is necessary for their deliberations at the end of the case.
William Wordsworth's sensitive observation about a poet's use of emotion applies to the advocate's craft:
I have said that poetry is the spontaneous overflow of powerful feelings: it takes its origin from emotion recollected in tranquility; the emotion is contemplated till, by a species of re-action, the tranquility generally disappears, and an emotion, kindred to that which was before the subject of contemplation, is gradually produced, and does actually exist in the mind. In this mood successful composition generally begins, and in a mood similar to this it is carried on; . . . .8
Emotions are powerful tools of advocacy. Treating emotions with delicacy and subtlety are required to portray sincere feelings of love, of grief, and of empathy with pain.
Clarence Darrow's Style of Expressing Emotion in Advocacy
Great advocates, like Clarence Darrow, understood the strong force of Wordsworth's "emotion recollected in tranquility." Darrow's final argument in the 1924 murder trial of Nathan Leopold, Jr. and Richard Loeb is a model for all trial lawyers who want to learn how to harness natural emotion to make their arguments persuasive.
Leopold and Loeb were two brilliant and wealthy teenagers who pled guilty to one of the most notorious and heinous crimes of the early part of this century: the kidnapping and murder of fourteen-year-old Bobby Franks, son of a prominent Chicago family. The State of Illinois sought the death penalty. A public frenzy quickly developed in support of the State's demand for the boys' execution.
Clarence Darrow, however, stood as a formidable obstacle in the path of the gallows. He devised an argument strategy around a sympathetic theme that saved the lives of Leopold and Loeb. Darrow argued that the boys must have suffered from a severe mental disease to have committed such a senseless murder. He insisted that a system of justice could not impose a sentence of death for a crime that could not be understood in any traditional manner.
This theme allowed Darrow to channel the hostile feelings generated by the murder toward sympathy for the two boys who, he argued, could not be held responsible for the crime because of their mental condition. Imagine the emotional impact of Darrow's words to the judge who had to decide whether Leopold and Loeb lived or died.
[I]t was the senseless act of immature and diseased children . . . wandering around in the dark and moved by some emotion that we still perhaps have not the knowledge or the insight into life to understand thoroughly.
* * *
There was not a normal act in any of it, from the inception in a diseased brain, until today, when they sit here awaiting their doom.
* * *
We are satisfied with justice, if the court knows what justice is, or if any human being can tell what justice is. If anybody can look into the minds and hearts and the lives and the origin of these two youths and tell what justice is, we would be content. But nobody can do it without imagination, without sympathy, without kindliness, without understanding, and I have faith that this [c]ourt will take this case, with his conscience, and his judgment and his courage and save these boys' lives.9
We can learn an important lesson from Clarence Darrow's style of advocacy: Emotion may be used as a persuasive weapon by all parties to a controversy. Good lawyers highlight the favorable emotions that support their clients in the same way that they use legal reasoning and the strongest legal precedents in their arguments.
The Leopold and Loeb trial provides an excellent example of the different ways in which counsel can focus attention on the emotional equities of the client's position. The prosecution supported its request for the death penalty by emphasizing the cruel nature of the crime, the immorality of its perpetration, and the suffering of the young victim's family. The State also expounded on the values of retribution and punishment that justified a sentence of death.
Darrow defused the emotional charge of the prosecution by expressing outrage for the crime and sadness for the victim's family. He then evoked sympathy for his clients by emphasizing the mental disease that compelled them to commit such an irrational crime. He asked the court to dispense justice with kindness, mercy, and an understanding of the dark side of human nature.
Civil litigation also presents strategic opportunities for an advocate to present the emotional theme of the case from different perspectives. Consider a negligence action involving an automobile accident. Plaintiff's counsel might focus the emotional aspects of the argument on damages issues. The advocate might hope to attract the jury's sympathy and compassion by describing how the client's lifestyle has been diminished as a result of the injuries sustained in the accident.
Defense counsel, on the other hand, would present a different emotional theme to the jury by asking the jurors to decide the case based on higher principles of the law and to resist the temptation of feeling influenced by opposing counsel's "emotional" argument centered on the plaintiff's injuries. Counsel for the defendant would then focus the jury's attention on the plaintiff's contributory or comparative fault and would argue that the facts and the law require a defendant's verdict or a small award of damages.
Accomplished defense lawyers often attempt to weaken the emotional strength of their opponent's argument by telling the jury that they should decide the case dispassionately based on the higher morality of the law. They proceed, however, to disguise the strong emotions underlying their legal defenses with appeals to justice and the rule of law.
Successful advocates express emotion naturally in a way that complements their unique personalities as well as the facts of their cases. Different emotional "styles" can be equally persuasive before the same judge or jury. Clarence Darrow's emotionally explosive delivery suited him well but his style is not appropriate for everyone. Some lawyers can be equally effective with a soft-spoken delivery focused on the merits of the case. The subtle emotion in this type of argument is rooted in the conviction and integrity of the speaker. Advocates enhance their persuasive abilities when they successfully develop their own emotional styles.
John C. Shepherd & Jordan B. Cherrick, Advocacy and Emotion, was first published at 138 F.R.D. 619 (1991). © 1991 John C. Shepherd & Jordan B. Cherrick. Reprinted with permission.
** Editor's Note: At the time this article was written, John C. Shepherd and Jordan B. Cherrick were partners in the St. Louis, Missouri, office of the law firm of Armstrong, Teasdale, Schlafly & Davis and members of the American Law Institute. The late Mr. Shepherd was a former President of the American Bar Association and a Fellow in the American College of Trial Lawyers. Mr. Cherrick currently is head of the appellate practice group at Greensfelder, Hemker & Gale, P.C., St. Louis, Missouri.
The article has been reprinted with minor modifications in formatting, including the use of footnotes for citations of authority. No changes have been made to the substance of the article or to the text or format of the citations.
1 The First Part of the Institutes of the Laws of England 97b (The Legal Classics Library ed. 1985, reprinting 18th ed. 1823) (1st ed. 1628).
2 Holmes, The Common Law 1 (The Legal Classics Library ed. 1985, reprinting 1st ed. 1881).
3 R. Du Cann, The Art of the Advocate 156 (1980).
4 Birkett, Six Great Advocates 109-10 (1961).
5 See Aristotle, The "Art" of Rhetoric (J.H. Freese trans., Loeb Classical Library ed. 1982); Quintilian, The Institutio Oratoria (H.E. Butler trans., Loeb Classical Library ed. 1980).
6 J.F. Genung, The Working Principles of Rhetoric 1 (1901), quoted in Garner, "The Language of Appellate Advocacy," Litigation, Summer 1989, at 39.
7 Mooy, Advocacy and the Art of Storytelling (National Institute of Trial Advocacy 1990), at 2.
8 Wordsworth, Preface to the Lyrical Ballads (2d ed. 1800), reprinted in The Complete Poetical Works of Wordsworth, 790, 797 (Cambridge ed. 1932).
9 Attorney for the Damned, 33, 41, 49 (A. Weinberg ed. 1957).