Subsance & Style

• Publication year: 2024
• Citation: Vol. 93 No. 4 Pg. 37
• Pages: 37

Subsance & Style93 J. Kan. Bar Assn 4, 37 (2024)Kansas Bar JournalAugust 2024

July, 2024

Persuading the Skeptic

By Betsy Brand Six, University of Kansas School of Law

Attorneys, we spend much of our time trying to persuade. Sometimes our audience is friendly, such as when we are trying to persuade our client to take our advice or persuade the senior attorney in our office that our research and reasoning are correct. But most of the time, our audience — the judge, jury, opposing party, or counsel — is skeptical of what we have to say.

Skeptics are not new. They go back at least as far as ancient Greece. Similarly, the science and art of persuasion has been studied for centuries. Aristotle gave us the ideas of ethos, pathos, and logos as the keys to effective rhetoric. Logos is the heart of legal argument: To persuade, an argument must be logically sound. Pathos appeals to a reader's or listener's sense of what is right, just, or good. But when you are trying to convince someone predisposed to doubt what you have to say, ethos is critical.

Ethos is the idea that to persuade you must appear credible. And yet in the latest Gallup poll, over 30% of the public rated the honesty and ethics of lawyers as low or very low.^[1] While there are many ways to lose credibility, for example by making multiple typographical or grammar errors, or misstating the facts or the law, a common way to lose credibility is to appear to have a bias or "agenda." But lawyers do have an...