You will help make the world a better


place by being kind, calm, and courteous. You will also become more persuasive. Modern scholars have referred to good will as “likability.”28


So, be nice. Smile. Surveys of jurors have


shown that a lawyer’s likability is just as im- portant to their decision-making as how the lawyer tries the case.29


Listen. Remember, as Dale Carnegie said, that “a person’s name is to that person the sweetest and most important sound in any language.”30


The essence of humility is


treating other people as if they matter. If people like you, they will listen to you.


Temperance


Humility does not mean timidity or meek- ness. It can be scary to acknowledge the complexities of a case, or to admit doubt in an argument. Doing so takes strength and courage. Indeed, advocates of


er it “a source of strength.”31


humility consid- According


to one author, humility is best thought of as a “mean” between the undesirable ex- tremes of pride and arrogance on one end, and subjugation and servility on the other.32


Humility calls for temperance, pa-


tience, and reserve. A lawyer who evinces humility by being temperate, considerate, and thoughtful establishes a “psychological connection with the audience,” and in so doing gains the audience’s trust.33 Humility has many practical applications in legal writing. For one, given Chief Jus- tice Roberts’s admonition, we should all re- solve (or re-resolve, we all falter) to avoid excessive modifiers and empty words like “clearly” or “obviously.” Humble writers avoid calling every argument they disagree with “frivolous.” Humble writers describe the facts, they do not characterize them. Quintilian said that “everything must seem to spring from the case rather than the art of the orator.”34


Humble writers value the


editing process because they know they are not perfect. Humble writers “look at their own writing with a critical, objective eye, and see its flaws.”35


While these and other practical applica-


tions are all vitally important, my focus in this column is more on humility as a disposi- tion. Practicing humility takes time and seri- ous effort. What might start as a conscious attempt to improve your persuasion in time can become second-nature. Humility can become the way we look at the world and react to it.


Conclusion American poet Marianne Moore said,


“Three foremost aids to persuasion which occur to me are humility, concentration, and gusto.”36


Apply this principle to your legal


writing and oral advocacy. Exhibit gusto— to be sure, there will be plenty of time for zealous advocacy. Concentration, without a doubt critical thinking, careful analysis, and long hours at the screen are prerequisites to persuasive legal writing. But first comes humility. You cannot persuade without it. ____________________ Gregory Johnson, Esq., is a Professor of Law and Director of the Legal Writing Pro- gram at Vermont Law School. He clerked for the Alaska Supreme Court and prac- ticed law in Alaska before coming to Ver- mont. Greg has also clerked for the Palau


Supreme Court in Micronesia. ____________________ 1


original). 2


3 4


Id. Id. Id.


5 RANDOM HOUSE COLLEGE DICTIONARY 645-66


(1973). 6


See KRISTEN KONRAD ROBBINS-TISCIONE, RHETO-


RIC FOR LEGAL WRITERS 3 (2009) (“As Aristotle con- ceived it, rhetoric involves the discovery, cre- ation, arrangement, and presentation of all forms


of argument, including legal argument.”). 7


WRITING (2013). 8


Id. at 12. 9 ROBBINS-TISCIONE, supra note 6, at 20. 10 Michael Frost, Justice Scalia’s Rhetoric of Dis-


sent: A Greco-Roman Analysis of Scalia’s Advo- cacy in the VMI Case, 91 KY. L.J. 167, 195 (2002) (“Like Aristotle, Cicero was convinced that an ad- vocate’s ethos played a critical part in the success of his arguments.”).


See generally MICHAEL R. SMITH, ADVANCED LEGAL


Robert Burns, Chief Justice Counsels Humility, WASH. POST, Feb. 6, 2007, at A.15 (emphasis in


11 Michael Frost, Ethos, Pathos, and Legal Ar-


gument, 99 DICK. L. REV. 85, 101 (1994) (quot- ing MARCUS TULLIUS CICERO, DE ORATORE 327-29


(E.W.Sutton trans., 1942)). 12


Id. at 100 n.71.


13 ROBBINS-TISCIONE, supra note 6, at 23-24. 14 Frost, supra note 11, at 103 (quoting 2 QUIN- TILIAN, INSTITUTIO ORATORIA 331 (H.E. Butler trans.,


1954)). 15


Id. at 102 (quoting 2 QUINTILIAN, INSTITUTIO ORA-


TORIA at 303). 16


TORIA at 11). 17


Id. at 103 (quoting 2 QUINTILIAN, INSTITUTIO ORA- Thomas Jefferson, Inaugural Address, quot-


ed in Tom Engelhardt, America’s Early Presidents Spoke With Humility, Not Hubris, VALLEY NEWS,


Jan. 16, 2009, at A.6. 18


Quotation available at http://thinkexist.com/ quotation/humility_is_like_underwear-essential-


but_indecent/197440.html. 19


20 SMITH, supra note 7, at 125.


See Kathleen Q. Seelye, Obama Vis- it to Notre Dame Provokes Debate, N.Y. TIMES, March 30, 2009 at http://thelede.blogs.nytimes. com/2009/03/30/obama-visit-to-notre-dame-


provokes-debate/?_r=0. 21


Transcript: Obama’s Notre Dame speech, avail- able at http://www.nytimes.com/2009/05/17/us/


politics/17text-obama.html?pagewanted=all. 22


23 THOMAS A. MAUET, TRIAL TECHNIQUES 397 (2010).


See Bruna Martinuzzi, Humility: The Most Beautiful Word in the English Language (“Some- thing interesting happens, too, when we ap- proach situations from the perspective of hu- mility. It opens up possibilities, as we choose open-mindedness and curiosity over protecting our point of view. We spend more time in that wonderful space of the beginner’s mind, willing to learn from what others have to offer.”) avail- able at http://www.mindtools.com/pages/arti-


See, e.g., SMITH, supra note 7, at 138-39 (“An advocate’s writing can show disrespect … (1) by including disrespectful content, (2) by writing in a disrespectful tone, and (3) by submitting a messy


cle/newLDR_69.htm. 24


and unprofessional document.”). 25


Frost, supra note 11, at 102 (quoting 2 QUIN-


TILIAN, INSTITUTIO ORATORIA at 303) (italics omitted); see also DAVID C. FREDERICK, SUPREME COURT AND AP- PELLATE ADVOCACY: MASTERING THE ART OF ORAL AR- GUMENT 261-62 (2003) (“The finest advocates are those who have talked their client out of making losing arguments and who have come to court prepared to make necessary concessions to ad-


vance their client’s ultimate interests.”). 26


SMITH, supra note 7, at 144.


Id. at 145; see also Ronald J. Waicukauski, JoAnne Epps, & Paul Sandler, Ethos and the Art of Argument, 26 LITIGATION 31, 33 (1999) (“If you stoop to your opponent’s level, you will surely in- flict harm on your own ethos as you try to inflict


27


damage on your adversary.”). 28


29


PEOPLE). 31


32


See Waicukauski, et al., supra note 27, at 33. Id.


30 Id. (quoting HOW TO WIN FRIENDS AND INFLUENCE Martinuzzi, supra note 23.


Brett Scharffs, The Role of Humility in Exercis- ing Practical Wisdom, 32 U. CAL. DAVIS L. REV. 127,


161 (1998). 33


Steven D. Jamar, Aristotle Teaches Persuasion: The Psychic Connection, 8 SCRIBES J. LEG. WRITING


61, 73 (2002). 34


IAN, INSTITUTIO ORATORIA at 119). 35


(Winter 2003). 36


Frost, supra note 11, at 103 (quoting 2 QUINTIL- Raymond P. Ward, Humility, CERTWORTHY, 7 Quotation available at http://www.thefreedic-


tionary.com/Persuasions.


24


THE VERMONT BAR JOURNAL • FALL 2013


www.vtbar.org


Credibility in Advocacy


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