In The Rhetoric, we read of Aristotle’s rules of persuasion, in which he says: “Persuasion is achieved by the speaker’s personal character. We believe good men more fully and more readily than others. There are three things which inspire confidence in the orator’s own character: Good sense, good moral character, and good will.”
This is part two of our series on opening statements in the courtroom, which rely on the case of State of Florida v. George Zimmerman as an example. Read the first part here: Understanding How Trials Work—What is an Opening Statement?
The First Rule of Persuasion, Ethos
When referring to Aristotle’s rules of persuasion, the character of the speaker is known as ethos. The tone is central to achieving good ethos in an argument. In the heated battle of a trial, lawyers sometimes will adopt an aggressive or sarcastic tone. This is a mistake, particularly during the opening statement. The jury doesn’t know you yet; you have to earn their trust. A tone of conviction and credibility is more likely to gain their trust than an overheated one.
Learn more: Aristotle on Life—The Big Picture
ETHOS, n. The distinguishing character, sentiment, moral nature, or guiding beliefs of a person, group, or institution. – Meriam Webster
At the same time, you also don’t want to appear like a bully or seem like a pushover. If you are apologetic, excessively polite, mumble, hesitate, fumble with visual aids, and use passive body language, the jury will believe you lack confidence in your case and yourself. A wise lawyer will practice his opening statement. This includes how he will interact with any visual aids he uses so he can project self-assurance. These tips are useful to any public speaker, not only lawyers.
This is a transcript from the video series Law School for Everyone: Litigation, Criminal Law, Civil Procedure, and Torts. Watch it now, on The Great Courses Plus.
Another key to establishing ethos: you cannot exaggerate. It can be tempting during the opening statement to puff a little, to stretch facts, or leave bad ones out entirely. That too is a mistake.
It can be tempting during the opening statement to puff a little, to stretch facts, or leave bad ones out entirely. That too is a mistake.
It’s easy to disprove an inflated claim, especially one that’s offered in an overheated way. For example, if you say your client is an exemplary person but the prosecution has witnesses who will testify that the man cheated on his wife, dodged his creditors, and abused his pets, then you can be sure that opposing counsel will point out the discrepancy. If the jury realizes you mislead them about the evidence, your credibility and your client’s will suffer.
In the case of The State of Florida vs. George Zimmerman, Prosecutor John Guy’s use of profanity in his opening statement turned out to be an exaggeration. Zimmerman didn’t say what Guy told the jury. He quoted two separate parts of Zimmerman’s conversation with a 911 dispatcher. At one point Zimmerman spoke about punks; at another, he complained about them getting away. Moreover, his tone on the tape sounded more frightened than aggressive. Of course, Zimmerman’s lawyers played the tape for the jury and made the point that the prosecutor exaggerated the quotes in his opening. It became an ethos problem for the prosecutor.
Learn more: Aristotle—The Highest Good
Good or Bad, Identify All the Facts
It is a good practice to identify any facts that are bad for your case. If you know that the opposing counsel is aware of them and is likely to mention them, you can lessen their impact by mentioning them first. Make sure you spend most of your time emphasizing the good facts that help you. If you do, mentioning a bad fact as part of the story rather than leaving it out altogether will help you stay credible. It’s a better practice than omitting the bad fact and allowing the opposing counsel to say, “Here’s what that lawyer didn’t tell you.”
In spite of the issue with profanity, Guy’s opening statement was good. It seems Zimmerman’s lawyers felt it was so good that they needed to do something to break the spell the prosecutor had cast. Don West, one of the defendant’s attorneys, opened strangely—with a knock-knock joke. Here is an excerpt from his moment of primacy:
“I think the evidence will show that this is a sad case, that there are no monsters here. Sometimes you have to laugh to keep from crying. So let me, at considerable risk, let me say, I’d like to tell you a little joke. I know how that may sound a bit weird, in this context under these circumstances. But I think you’re the perfect audience for it. As long as you don’t—if you don’t like it or you don’t think it’s funny or inappropriate, that you don’t hold it against Mr. Zimmerman. You can hold it against me if you want, but not Mr. Zimmerman. I have your assurance you won’t. Here’s how it goes:
Knock knock. Who’s there? George Zimmerman. George Zimmerman who? All right, good, you’re on the jury.”
The jury’s response was dead silence. No one laughed. The joke wasn’t appropriate—murder is no laughing matter—and it was at the expense of the jury. It implied that the only qualification to be on the jury was to be clueless enough to not know who George Zimmerman was.
What was West trying to do? He tried to use positive emotion to connect with the jury and make them like him by getting them to laugh. It badly misfired. A good rule of thumb: If you are preemptively apologizing for a joke or worrying it could be used against your client, it’s probably not a good idea.
Learn more: Aristotle—The Happy Life
The Second Rule of Persuasion: Pathos
The impulse to connect with the jury by engaging them was a good one, even though West’s execution was clumsy. To be persuasive, you must figure out how to get the jury emotionally invested in your client and your case. This is Aristotle’s second rule of persuasion: Not only do you have to exhibit ethos or credibility, but you also need to use pathos to engage the emotions of your audience effectively.
PATHOS, n. The quality or power in an actual life experience or in literature, music, speech, or other forms of expression, of evoking a feeling of pity, or of sympathetic and kindly sorrow or compassion. – Merriam Webster
As a lawyer, you need to figure out how to use pathos to explain your client’s view of events through a believable and compelling story that jurors can identify with, present your theory of the case, and convince the jurors to relate to your client’s point of view. For this reason, the opening statement is critical: It’s a moment of primacy where you want to take advantage of the jury’s attention and make a good impression. To be persuasive, you want to show good character, emotional engagement, and demonstrate clear logic.
However, the exercise is tricky due to its limitations. You have to be careful not to argue, not to wander into subjects that you won’t be able to introduce into evidence, or make mistakes that allow the opposing counsel to delve into topics that otherwise would be off the table.
One can look at an opening statement as a terrific laboratory for studying persuasive rhetoric. At its best, an opening statement is clear, engaging, memorable, and leaves the jury eager to hear the testimony to come.
Common Questions About Rules of Persuasion
For Aristotle, persuasion is not about “tricking” your audience. Rather, it’s about demonstrating to your audience that you want the best for them and that you want to help them.
Aristotle’s three modes of persuasion are ethos (establishing trust), pathos (evoking emotion), and logos (demonstrating logic).
For Aristotle, every argument needs three components: ethos, pathos, and logos. In order to effectively persuade your audience, your argument must be strong in all three of these areas.
Aristotle believed that pathos, or evoking emotion, was an effective way to move the audience and to get the audience on your side in a persuasive argument.