The Ethics of Pathos, Part I

Over at Overlawyered Walter Olson asks, “Should lawyers trying cases make an appeal to jurors’ ‘reptile brains’?”

In writing about Reptile Trials in Lizards Don’t Laugh, I hadn’t even considered this question.

If Walter’s were a practical “should” question—”will it sometimes benefit clients for lawyers trying cases to appeal to jurors’ reptile brains?”—then the answer would be “yes, absolutely.” But that’s not the tenor of Walter’s question. Considering his site’s description, I think it’s fair to say that Walter’s question is an ethical one. The ethical question: “is it right for lawyers to appeal to jurors’ reptile brains?” has nothing to do with the procedural or disciplinary rules (which don’t forbid a Reptile Trial), and everything to do with our own personal moral judgments.

The art of persuasion is not a new thing; since ancient Greece, advocates have been using pathos, as well as ethos and logos, to move audiences to action. Prosecutors have been appealing to jurors’ reptile brains since before anyone knew that jurors had reptile brains. They called it “make people afraid,” or, if they weren’t that self-aware, just did it the way that their supervisors taught them.

If we ask the ethical question about Reptile Trials, we should ask the same question about all other emotional appeals to juries—a Reptile Trial is just a more scientific application of pathos to the facts of the case.

Is there any serious contention that it is unethical to appeal to juries with anything other than reasoning (logos)? University of Maine at Presque Isle Professor Emeritus of Communication Ken Petress asserts that persuasion using pathos alone is unethical:

Using emotions to persuade others is ethical as long as the persuader allows, encourages, and facilitates rational decision-making on the part of the persuadee.

Short-circuiting rationality on the part of those being persuaded by the sole use of or hyper use of emotional appeals is unethical.

The quote is from a PowerPoint presentation; Professor Petress doesn’t elaborate further. But “short-circuiting rationality” is a a fair description of the goal of a Lizard Trial, and it’s good to know that at least one person considering the problem of persuasion has concluded that doing so is unethical.

Investigation of discussions of subliminal advertising from the 50s would probably yield similar opinions. The idea of persuasion as a hard science is frightening to people who aren’t students of the science, but “frightening” is not necessarily unethical.

If Petress is wrong—if it’s ethical to short-circuit a jury’s rationality with pathos—do the analysis and science behind a Reptile Trial render it unethical in a way that the use of pathos in persuasion has not been considered unethical for two thousand years?

In a Reptile Trial (or the simian trial that I propose as an alternative) the lawyer considers the human brain as a physical object that follows certain rules, and then uses those rules to her advantage. Does the application of neuroscientific research finally reveal some ethical problem with the use of pathos that was never noticed during the millennia when persuasion was a softer science?

I would love for cases to be decided by jurors using their mammalian and simian brains. There’s a reason lizards have never written a halfway decent novel: no compassion, and no imagination. Nine times out of ten it would make my job as a criminal-defense lawyer easier if prosecutors couldn’t try Reptile Trials, and I would have to spend a lot less time revealing the man behind the curtain to juries.

Still, I tend to disagree with those who would say, in the context of a jury trial, that using science to persuade, as in a Reptile Trial, is unethical. I’ll discuss why in my next post.

, , ,

0 responses to “The Ethics of Pathos, Part I”

  1. The fact underpinning the Reptilian Approach to trial persuasion is that there is no differentiation in the decision making process between emotional and rational decision making in human beings. Both ‘processes’ exist as useful fictions for what is in essence a simultaneous and inextricable function. Dualism is fictive. Couching one’s narrative in such a manner that appeals to both the natural human process of self interest, emotion and harm avoidance, as well as the rather limited ability humans have to be Mr. Spock is simply common sense advocacy. Walter’s question “is it ethical” is nonsense. Human decision process is not a tidy thing. After debriefing hundreds of jurors after verdicts and conducting mock juries with thousands of jurors, I can tell you that emotion populates the narratives jurors comprise of the fact patterns and parties’ testimony. The narrative composed thus drives verdicts and rationality is compressed by biases and decision heuristics that are far from pristine. Accepting the Dionysian with the Apollian is just a fact of persuasion life.

  2. The reality of trial tightly constrains lawyers from engaging in the short of emotional appeals that would truly short-circuit rationality. Unlike, say, Joe Wilson, I can’t jump up in the middle of the defendant’s testimony and shout “you lie!” More importantly, I’m expressly prohibited from using the most effective method of short-circuiting rationality, which is to interject the jurors personally into the plaintiff’s shoes. Asking a jury, “how much money would you need if you had been catastrophically injured like Mr. Plaintiff?” is a one-way ticket to a mistrial.

    I rather liked the “Reptile” book that started off this discussion, but not because it gave me some bag of tricks that I can use to bedazzle the jury, but rather because it helps me stay focused on the real issue of my cases, which is community safety and well-being. I see nothing ethically wrong with keeping in the forefront of my cases the danger created (and the harm realized) by the defendant’s conduct. That’s one of the main reasons we have the trial in the first place, to assess whether the acts creating that danger and harm were outside the standard of care.

Leave a Reply

Your email address will not be published.