My first day on the job as a new insurance-defense associate, the partner I worked for told me that there were three primary considerations in any case: the law, the experts, and the emotional appeal. To win, a lawyer needed any two of the three on his or her side.
I didn’t know it at the time, but these are the same three things Aristotle identified as the key modes of persuasion: logos (the facts; the law), ethos (credibility or expertise), and pathos (emotion). The modes of persuasion form the foundation of the persuasive-writing unit I teach as part of the first-year writing course. And I tell my students the same thing my boss told me all those years ago. Here are the three tools in your kit; you need any two of them to win.
And in case they don’t understand what I mean, I give them the very medical malpractice case I was wading into when I was told the same thing.
It’s a hell of a case. New parents, happily expecting their first child – a perfect little angel of a daughter. What they get is a child that won’t (and didn’t) live fifteen minutes after drawing her first tortured breath – a situation that could have been avoided, had the physician simply read the (appallingly obvious) ultrasound images correctly.
The pathos is obviously with the parents. But the law is with the doctor. As miserable as this case is, it’s not the kind of case for which medical malpractice law offers a remedy. (As states increasingly restrict access even to therapeutic abortion, it will become even less remediable by medical malpractice law – our client settled for a small amount covering the unspared angst between the last chance to abort and the birth; without the option to abort, the family would have had $0 in demonstrateable losses. But I digress.)
And that’s why I assign a (simplified and anonymized) version of the case to my students. The logos is obviously with the doctor, the pathos obviously with the family. (The ethos is split down the middle.) You need two of the three to win; what do you do with the gaping hole in your argument that is the ace-in-the-hole of your opponent’s?
Sometimes, I get really weird answers. Last semester’s students scarcely even tried, instead attempting to sue the ultrasound technician and offering to settle for approximately 85 cents on the demanded dollar, valuing the parents’ “pain and suffering” far more dearly than was typical in my practice.
This semester, the doctor’s “counsel” pounced on an offhand remark in the fact pattern about the expectant mother’s long-conquered smoking habit and used it to turn her into the worst caricature of a wanton partier – an approach to the ethos problem I probably should have anticipated, given the vast array of role models available to my students in the form of legislators who blame women for everything that could possibly go wrong with their own pregnancies. The parents’ “counsel” responded by pointing out the doctor’s own “dude-you-just-committed-malpractice-who-are-you-to-lecture-us-on-morals” ethos problem, which led to a fruitful discussion of the “tu quoque” problem and what to do when an argument is logos-deficient but ethos- or pathos-profound.
As gruesome as some of my students find this problem, I continue to teach it because it creates some of the best discussions I have in the classroom all year. It also introduces my students to a challenging reality: that not all problems have a morally comfortable answer. Sometimes, all the possible resolutions suck – but it’s what we do in that spot, rather than in the easy ones, that tells us who we are and who we need to become.