ian’s lesson is profound. We know this to be true, especially in a small state like Ver- mont. A lawyer’s credibility may be formed by the briefs he/she writes and the argu- ments he/she makes, but soon it is larger than the sum of its parts and, good or bad, follows the lawyer from case to case. If you use a mild tone and gentle language, if you are modest—if you are a good person— your credibility will redound to your client’s benefit.


Quintilian and other ancient proponents of rhetoric advocated for a certain “false humility,” or an approach suggesting “the task is larger than I.” He encouraged ad- vocates to “represent[] that we are weak, unprepared, and no match for the power- ful talents arrayed against us.”16


Many ear-


ly American politicians adopted this rhe- torical approach. Thomas Jefferson, for example, bemoaned “a sincere conscious- ness that the task is above my talents, and that I approach it with those anxious and awful presentiments which the greatness of the charge and the weakness of my pow- ers so justly inspire.”17


This from the states-


man who wrote the Declaration of Indepen- dence! Today, this sentiment rings, well, a little false. Excessive or feigned humility leads to insecurity and, worse, calls atten- tion to itself. I agree with Helen Nielsen, a script writer for Perry Mason, who said, “Humility is like underwear, essential but in- decent if it shows.”18 Today the term rhetoric has a negative meaning for some, and can be used pejo- ratively to mean manipulative or disingenu- ous. But advocates of the “New Legal Rhet- oric” are reclaiming the word and showing how a careful study of all three prongs of persuasion, and especially ethos, are criti- cal to successful advocacy. Michael Smith puts ethos first: “A strong argument can be made that ethos is more important to persuasive legal writing than either logi- cal argument (logos) or appeals to emo- tion (pathos). In fact, the effectiveness of both emotional and logical arguments de- pends in large part on perceptions of the advocate’s credibility.”19


Given the im-


portance of credibility to persuasion, ev- ery lawyer should make establishing good character and credibility a professional goal of paramount importance. My premise is that evincing humility is a necessary start- ing point in this process. The remainder of this column will highlight aspects of humil- ity that aid in persuasion.


Aspects of Humility in Legal Advocacy Doubt


Some of you may remember the brou-


haha that accompanied President Obama’s commencement speech at the University of Notre Dame back in 2009. A large contin- gent of alumni, students, and other inter-


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ested parties protested his visit to campus because of his position on abortion.20


As a


graduate of Notre Dame Law School, I fol- lowed the controversy closely. President Obama took the protesters to task by of- fering this profound insight on faith: “[T]he ultimate irony of faith is that it necessarily admits doubt. It’s a belief in things not seen … And this doubt should not push us away from our faith. But it should humble us. It should temper our passions, cause us to be wary of too much self-righteousness.”21


We


should all take President Obama’s advice. As lawyers, we should temper our passions. We should be humble. We should have faith in our case but we should also admit doubt. Faith includes doubt, and that doubt leads to humility.


Of course, lawyers have to believe in their


arguments. If they do not, it will show. Yet great advocates acknowledge the weak- nesses of their case. A frank assessment of the weaknesses of your case can prepare you for questions from the court and op- posing counsel. Thomas Mauet, a noted author on trial techniques, has argued that confronting the weaknesses in your argu- ment can also work to your benefit with the jury, which “will respect your honesty and candor when openly and candidly discuss- ing [your case’s] weaknesses.”22 Humility connotes an open-mindedness and curiosity.23


One who is humble can be


persuaded that her conclusion is wrong. Humble lawyers possess a quiet confidence that enables learning and reassessment, because humble lawyers are not defensive or insecure. Humility means admitting you do not have all the answers. So do not be afraid to acknowledge the weaknesses of your case. Have doubt. It will make you a more persuasive lawyer.


Respect


Humility manifests itself in a respect for the judicial system. Commentators on ethos typically frame this principle nega- tively by cautioning against disrespect,24 but my point is larger than this. The lesson here is more than just avoiding disparaging


THE VERMONT BAR JOURNAL • FALL 2013


comments, hyperbole, and ad hominem at- tacks. Humble lawyers respect the process of law and litigation. They recognize the majesty of the law, however flawed, and feel a sense of privilege for being a pro- ductive part of it. Lawyers should see legal writing and advocacy as meaning-making. Lawyers help shape the law with their ar- guments.


Lawyers should therefore respect the ju- dicial system they are part of by being can- did, timely, honest, and courteous. Lawyers who respect the system sort through poten- tial arguments and only present those that have a meaningful chance of persuading. Here, again, the impulse to be respectful, born of humility, aids in persuasion. Quintil- ian cautioned “advocates against burden- ing ‘the judge with all the arguments we have discovered since by so doing we shall at once bore him and render him less in- clined to believe us.’”25


Avoid the “splatter


board” approach to issue selection. Your ar- gument will be stronger if you choose one or two key points to make. The court is more likely to listen to your argument if it is assured that you have done the initial work of winnowing out issues that do not matter.


Good Will Scholars of rhetoric place great value on


good will, which is defined as “how an ad- vocate feels or is disposed toward others involved in the matter under discussion.”26 This principle is similar to considerations discussed above with respect, but focus- es on the individuals involved in a dispute rather than respect for the judicial system. I was once in private practice, so I know how hard it can be to remain even-tempered with out-of-control opponents who have not read Cicero. Don’t take the bait. Mi- chael Smith makes an interesting point in this regard:


Under the principle of good will, the manifestation of malevolence by an advo- cate causes a decision-maker to doubt the advocate’s advice because it may be based less on rational reasoning than on ill will to- ward a participant in the matter.27


23


Credibility in Advocacy


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