by Gregory Johnson, Esq.


Credibility in Advocacy: Humility as the First Step


Is Your Argument Clearly Correct?


Welcome to the second column in the new series on legal writing from profes- sors in the Legal Writing Program at Ver- mont Law School. In the inaugural column, Reluctant Literati: Lawyers as Professional Writers, Brian Porto challenged readers to embrace writing as a central, essential skill of lawyering. He offered helpful advice on ways to improve writing, and encouraged all lawyers to take pride in their writing. Lat- er columns will explore important topics like legal organization, careful line-editing, proper citation form, and tips for writing more persuasively, all critical components of good legal writing. At the outset of this series, though, it is fitting to discuss more generally the appropriate disposition or at- titude of an effective legal writer. Lawyers are well-schooled in zealous advocacy but often have little appreciation for the pole- star of persuasion—their credibility as an advocate. To be persuasive, a lawyer must first establish credibility. My thesis is that humility is an overlooked yet necessary first step in establishing credibility. This idea sprang from reading about a talk Chief Justice John Roberts gave sev- eral years ago in which he lamented the lack of humility among the litigators be- fore the Supreme Court. He complained that the Court gets “hundreds and hun- dreds of briefs, and they’re all the same.”1 “Somebody says, ‘My client clearly de- serves to win’ … And you pick up the oth- er side and lo and behold, they think they clearly deserve to win.”2


What the Court—


any court—is looking for is some help in deciding tough cases. Chief Justice Rob- erts urged lawyers to try a different ap- proach, one that he acknowledged might be “risky.” He suggested that lawyers “get up and say, ‘The biggest argument against us is … this precedent that you decided six years ago, and if you were going to follow it down the line, my client should probably lose. Here’s why I think you shouldn’t fol- low it in this case.”3


Chief Justice Roberts


also complained that the Court’s law clerks lacked humility. He acknowledged that they are extremely intelligent (they have “writ- ten books and cured diseases,” he said), but, he concluded “I don’t think they spend a great deal of time with what somebody like a Cicero might refer to as rhetoric.”4 Regardless of whether you have the nerve to follow Chief Justice Roberts’s ad-


22


vice about that six year-old precedent, all lawyers can benefit from his advice to add a healthy dose of humility to your zealous ad- vocacy. Who wants to be known as a zeal- ot? Instead, try being humble in the face of complex legal questions. The dictionary de- fines humility as a “modest sense of one’s importance” and humble, as “not proud or arrogant … [but] courteously respectful.”5 Humility leads to moderation. It connotes strength of character, good judgment, and respect for the process of judicial decision- making. Humility makes us human. Humil- ity is not a weakness, it is a sign of intel- lectual curiosity. In some respects humility is the cornerstone of the legal method: Do not prejudge. Respect the facts. Always re- main open to considering different posi- tions and arguments. Develop a nonjudg- mental frame of mind. Humility is balance, thoughtfulness. These salutary attributes of effective lawyering can contribute to a more humane professional environment but they also, somewhat paradoxically, can make lawyers more persuasive. Humility makes us trustworthy. As Chief Justice Roberts’s comments illustrate, an advocate is more likely to influence a court if the court perceives the advocate’s written and oral argument as assisting the court in doing its job. Try saying to the court, “Your honor, this is a close case. There are reason- able arguments on both sides.” Then say why you have the better argument. Often, the only way to convince the court that it can rely on your argument is to concede the weaknesses of your own position, as well as the strengths of the opponent’s argument, and then proceed to explain to the court in a principled and reasoned manner how to overcome those weaknesses and why the strengths of the opponent’s arguments are either irrelevant or outweighed by counter- vailing considerations. How do we get from our present state of zealous advocacy to Chief Justice Rob- erts’s vision of a profession imbued with humility, where lawyers candidly acknowl- edge the weaknesses of their arguments? Embodying humility as a central character attribute takes time, especially because it can run counter to our perceptions of ef- fective lawyering. You can begin with small steps, like by avoiding the word “clearly”! This column will offer other steps, large and small, that can help you sharpen your per- suasion through humility.


THE VERMONT BAR JOURNAL • FALL 2013 What Lawyers Can Learn From Cicero


Other ancient Greeks expounded on his ideas, which Romans like Cicero and Quintilian also embraced. In brief, classical rhetoric divided persuasion into three pro- cesses: logos, pathos, and ethos.7


Michael


Smith, a leader of the “New Legal Rheto- ric” movement, summarized the three pro- cesses succinctly: “Logos refers to persuad- ing through logic and rational argument. Pathos involves persuading by appealing to the audience’s emotions. Ethos refers to persuading by establishing credibility in the eyes of one’s audience.”8


The first two pro-


cesses are familiar territory for lawyers. This column will focus on the third. While each process is critical to persuasion, ethos is ar- guably the most important. A logical analy- sis of the law and an emotionally compel- ling factual narrative are often insufficient if the advocate lacks credibility. Cicero, the greatest Roman orator,9


and


other classical rhetoricians agreed that an advocate must first establish credibility in order to persuade.10


To establish credibility,


Cicero recommended the advocate adopt “a mild tone, a countenance expressive of modesty, gentle language, and courtesy.”11 To Cicero, the credible advocate displays “good-nature, kindness, calmness, loyalty, and a disposition that is pleasing and not grasping or covetous.”12


Notice loyalty is an


attribute, so the client can still come first, but what a different profession it would be if more lawyers were modest, kind, calm, and pleasing! Cicero heavily influenced Quintilian, who


was born in Spain one hundred years af- ter Cicero’s death.13


Quintilian also be-


lieved that an “even-tempered” person is the most credible. He urged moderation and cautioned against self-confidence with this insight, still true today: “For as a rule [a] judge dislikes self-confidence in a pleader, and conscious of his rights tacitly demands the respectful deference of the orator.”14 Quintilian extended Cicero’s understanding of credibility from a narrow focus on a giv- en speech (or writing) to include the advo- cate’s overall character. Quintilian believed that “the strongest argument in support of a speaker is that he is a good man.”15 ting aside the gendered language, Quintil-


Set- www.vtbar.org


Rhetoric, or the study of the art of persua- sion, has an illustrious 2500 year history. Ar- istotle is credited with establishing the ba- sic principles of rhetoric in the fourth centu- ry BCE.6


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