The figures of ethos
The ancient rhetorical system of advocacy also included recommendations of “Figures of rhetoric” that could be used in specific situations. Therefore, each of the elements of a classical legal argument, such as the introduction, statement of facts, legal argument, evidence in support of your position, evidence damaging to your case and the closing speech, all had different rhetorical techniques associated with it.
We’ve established in this section that establishing ethos or personal credibility is a key feature of the introduction in a legal argument, whether that introduction is found in the opening speech of a trial or in the introduction of a skeleton argument. The ancient rhetoricians identified two rhetorical techniques that an advocate may use to establish their ethos in an introduction and these are known as the “Figures of Ethos”.
The two techniques that you can use to establish your personal credibility in an introduction are anamnesis and litotes.
Anamnesis is where you cite a famous and appropriate quote at the start of your introduction as a way of establishing that the advocate is knowledgeable, well read and well educated. This gives the judge and the jury confidence in the advocates abilities, provided it is done properly.
A good example of this can be found in the introduction of the written observations of the petitioners in the Wightman case which sought to establish whether or not Article 50 TFEU was revocable, which stated:
INTRODUCTION AND SUMMARY
1. In "Meditation XVII" in his Devotions upon Emergent Occasions of 1624 CE, the English poet and cleric, John Donne, wrote that:
"No man is an island entire of itself; every man is a piece of the continent, a part of the main; if a clod be washed away by the sea, Europe is the less".
However, if using anamnesis, make sure you use it effectively! If you mis-quote you are likely to annoy your judges rather than impress them.
See also - Memory
Litotes is where you use deliberate understatement to impress judges as to your modesty, and to give them a favourable view of you. You may remember that previously we established the character traits that are desirable in an advocate, and those that should be avoided. In general, advocates want to avoid, particularly in the introduction of their opening speech, to give the impression that they are:
abusive to people, particularly the judge, their colleagues, clients and witnesses.
Malicious or vindictive
excessively self assured/too confident “As a rule a judge dislikes self confidence in a pleader, and conscious of his rights tacitly demands the respectful deference of the orator”
The Ad Herennium author suggests litotes/deliberate understatement can be useful as a means of expressing modesty, arguing that downplaying one's accomplishments is likely to gain the judges favour, and help establish the ethos of the advocate. You can find a good example of this in the case of Creighton v Townsend (1816). Mr Phillips, acting for the plaintiff, starts his opening speech with:
“My Lords and Gentlemen,---I am, with my learned brethren, Counsel for the Plaintiff. My friend, Mr. Curran, has told you the nature of the action..Believe me, it is with no paltry affectation of undervaluing my very humble powers, that I wish he had selected some more experienced, or at least less credulous advocate.”
To be fair to Phillips, he was being led by probably one of the greatest orators of his day -John Philpot Curran - which must have been completely intimidating! In light of that, the court was likely to look upon him favourably if he demonstrated modesty in comparison to the person he was being led by. It would have sounded a very wrong note if he had swaggered in saying “I’m here to show you how proper advocacy is done” for example.
However, it is important when using this technique not to lay it on with a trowel, as that will completely undermine what you are trying to achieve. Phillips full opening was:
“My Lords and Gentlemen,---I am, with my learned brethren, Counsel for the Plaintiff. My friend, Mr. Curran, has told you the nature of the action..Believe me, it is with no paltry affectation of undervaluing my very humble powers, that I wish he had selected some more experienced, or at least less credulous advocate. I feel I cannot do my duty; I am not fit to address you; I have incapacitated myself.
Phillips was known for having a very florid style – his nickname at the Bar was “Old Garnish” as he tended to add unnecessary rhetorical garnish when he would be better off stopping, generally recognised as a rhetorical vice. In the quote above, he would have been more effective if he had left off the last sentence for example, as by the end of it, it is just getting tedious. Amazingly enough, a little modesty goes a long way...
Another great example of modesty being used to establish ethos at the Bar was in the wonderful 1818 case of Miss Tocker,7.05 MB for her libel against Richard Gurney, a judge who had fled the country for debt, but carried on claiming his judge’s salary. Miss Tocker wrote a strong letter to the papers expressing her disapproval with this practice, and arguing that he shouldn’t be able to claim a salary if he wasn’t doing the work. Miss Tocker was charged with libel, and on the day of her trial, her father and brother, who were both lawyers, announced that she would be conducting her own defence. This caused a sensation. She started her defence by saying:
“She threw herself upon the indulgence of the court; and hoped any irrelevant matter she might bring forward would be attributed to ignorance and not to intention. She came before them wholly ignorant of the equivocations of law ; unpractised in the arrangement of an argument, and destitute of the graces of oratory; with only the rude weapons of reason and the untutored eloquence of nature, to oppose tried talent and professional skill. Sbe was not qualified to discuss the question except on the moral ground of right and wrong, and on this it must finally rest."
Expressing modesty and deference to the court helped her to establish her initial ethos with the court, whose sensibilities were already affronted at the shocking idea of having a woman defend herself in court. This was important given she was the first female advocate to conduct her own defence in an English court of law, and the right approach to take given the circumstances. However, by leading with a modest opening she was also demonstrating that she absolutely understood how to arrange an argument. This opening always reminds me of that great quote in Terry Pratchetts Witches Abroad "When an obvious innocent sits down with three experienced card sharpers, and says "How do you play this game, then?'someone is about to be shaken down until their teeth fall out." Which is pretty much what happened.
For the next two hours, she defended herself in spite of repeated interruptions from the Judge, quoting extensively from Blackstone's Commentaries, John Locke's Essay concerning Human Understanding and the words of the Lord Chief Justice, Lord Ellenborough. The main points she made in her defence were that :
Men in public office could not complain about fair comment on the execution of their duty.
Her reading of history, jurisprudence and moral philosophy led her to believe that the law was perverted when the maxim, 'the greater the truth, the greater the libel', directed the decision.
She could prove in evidence that all the charges she made in her letter were true:
The judge directed the jury that her comments were an atrocious libel. The jury listened politely, retired for half an hour and came back with a not guilty verdict. Mary Ann later commented on the reaction of the crowds to the verdict:
“Even the Ex-Vice Warden, his father and brother, these pious and charitable pastors who came to witness my condemnation and ruin, must have heard the loud cheering of the different parties of legal gentlemen at the principal Inn in Bodmin on receiving the news.”
Twenty five years after her trial, the Libel Act 1843 changed the law on Libel to allow a defendant to argue that what had been said was true and in the public interest just as Mary Ann Tocker had argued in her trial.
Ethos matters in all cases, as you won't be persuasive without it. And the more extra-ordinary the situation the more important it becomes.
Standing up for the ethos of the Bar
Whilst generally an advocate will be seeking to establish their personal ethos or credibility to the court, there are times where an advocate may need to stand up for the ethos of the Bar itself. The most famous example of this is Erskine, who against all advice, took on the defence of Thomas Paine, who was charged with seditious libel for writing a book “The Rights of Man”. The second part of the “Rights of Man” argued for a representative government with enumerated social programs to remedy the numbing poverty of commoners through progressive tax measures. It caused a sensation, selling over a million copies in 1791. The government, worried about the book causing social unrest, got government agents to follow Paine and instigate mobs, hate meetings, and burnings in effigy. When Erskine took on Paine’s defence, he was subject to death threats, and pilloried in the press. In response, Erskine made the following speech at the trial of Thomas Paine:
"But with regard to myself, every man within hearing at this moment, nay, the whole people of England, have been witnesses to the calumnious clamour that, by every art, has been raised and kept up against me: in every place where business or pleasure collect the public together, day after day my name and character have been the topics of injurious reflection. And for what? only for not having shrunk from the discharge of a duty which no personal advantage recommended, and which a thousand difficulties repelled. But, gentlemen, I have no complaint to make, either against the printers of these libels, or even against their authors; the greater part of them, hurried perhaps away by honest prejudices, may have believed they were serving their country by rendering me the object of its suspicion and contempt; and if there had been amongst them others who have mixed in it from personal malice and unkindness, I thank God I can forgive them also.
Little, indeed, did they know me, who thought that such calumnies would influence my conduct. I will forever, at all hazards, assert the dignity, independence and integrity of the English Bar, without which, impartial justice, the most valuable part of the English constitution, can have no existence. From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the court where he daily sits to practise, from that moment the liberties of England are at an end."
For a long time afterwards, the standard toast at a barristers lunch or dinner was "To Erskine and independence!"