Anatomy of a Trial, Part V: Ethos and the effective opening

Daily Record, The (Baltimore), Mar 31, 2006 by PAUL MARK SANDLER

The great teachers of persuasion in antiquity believed that all persuasion involved ethos (character), logos (logic) and pathos (emotion). Effectively blending these three elements into an opening statement will position you well for success at trial. As we bring to a close our discussion on opening statements, it is important to appreciate that, like closing arguments, they are creatures of rhetoric - the art of using the most effective means of communication available. The advocate who appreciates this will develop the opening in a manner that will enhance his or her ethos before the jury, appeal to the jurors' sense of pathos, and ground the case in sound logic.Because the opening statement is the first chance the jury gets to see you in action, it is the best opportunity to establish a strong ethos. In the context of the courtroom, this term refers to the character of the advocate as it is perceived by the judge or jury. While qualities such as honesty and integrity are part of one's ethos, the concept is broader. It includes such characteristics as the advocate's knowledge of the case, his or her sincerity, goodwill, and even the ability to convincingly demonstrate enthusiasm and emotion. Ethos should be on the minds of all advocates throughout the trial. Sometimes the concept of ethos is explained in terms of personal advocacy. The lawyer tries to become the figure the jury identifies with and the central focus of attention in the courtroom. When you act with dignity and civility, your ethos rises. When you quibble and suffer admonitions from the judge, your ethos falls.

Receiver- centered approachAs your ethos as an advocate depends on how you are perceived by the judge or jury, it is crucial to tailor your opening statement to your listener. That means embracing rhetoric that will raise your stature in the eyes of your audience. You should take into consideration the factors that influence decision-making, such as a judge or jury's attitudes and beliefs. Focusing on the people you wish to persuade is what's called a “receiver- centered” approach to persuasion. It requires, of course, that you understand something about your audience, which is tricky when it comes to the jury. With a judge, we can at least study his or her prior opinions, sit in the courtroom and observe the judge at work, or even ask colleagues about him or her. Getting a bead on the jury is more complicated. You can use your intuition and hope that questionnaires and voir dire will give you some information. You can also retain the help of a jury consultant. In U.S.A. v. David Rosen, both sides sought to bolster their ethos and tailor their opening statements with the jurors in mind. To illustrate how the attorneys did so in two instances, we will consider how they handled Sen. Hillary Clinton's indirect involvement in the case. The defendant had been the national finance director of Sen. Clinton's 2000 campaign and had been accused by the government of causing a false fundraising report to be filed with the Federal Election Commission. Clearly, there was the potential that some of the jurors would feel supportive of the Clintons and the Democratic Party, and that these feelings could impact their view of the evidence. The government thus delivered an opening that dealt with these suspected sympathies. The prosecutor emphatically stated that the case had nothing to do with the senator. This was a smart approach. Clearly, the government wanted any jurors who did support Hillary Clinton to separate her from the defendant and the allegations against him. If the government had neglected to address this concern, one can imagine that a Democratic-leaning juror might have sat through the trial internally resisting the prosecutor's efforts as an attack against the senator's campaign, the Clintons, or the Democrats in general. The prosecutor's ethos would have suffered greatly because of this.

An emotional connectionWhile the government sought to distance the case from Hillary Clinton, the opening statement for the defense highlighted Rosen's relationship with the First Lady after first summarizing his background. The defense opening briefly touched on the defendant's Chicago upbringing, his “loving family,” and education. David Rosen didn't complete high school but earned a GED and worked “all the way through his young life,” at McDonald's, Domino's Pizza, and as an encyclopedia salesman. He also worked his way through college before becoming involved in politics. The defense's aim in making these comments during the opening was to portray Rosen as an industrious, earnest, self-reliant young man of humble roots. Seconds after hearing how the defendant had worked as a pizza delivery man and a burger flipper, the jurors received a three-sentence description of his entrance into Democratic politics and fundraising. Then they listened to the following story:[I]n 1999, an interesting phone call was received by Mr. Rosen. It was someone who was an official in the Democratic Party who wanted to know would he like to come to the White House, meet the First Lady, and discuss being a fundraiser in her campaign for the United States Senate. And yes, folks, he was very excited.He went to the White House. The evidence will show he went into the map room of the White House, and there he met the First Lady. He was ecstatic being in that room. It was very, very exciting. But he, of course, was not a child or a youngster, and was able to contain his enthusiasm. And he had lunch with the First Lady around the pool of the White House, just the two of them, and they talked politics. And David Rosen was interested, and he was interested in helping the First Lady become a United States Senator; and he was very, very excited when he was offered the position of being the national fundraiser director for her campaign.In narrating the story just this way, the defense sought to help the jurors form their own vivid impression of David Rosen and this case. Whether the story was successful, one can't know, but the goal was to forge an emotional connection between the jury and Rosen by showing the jurors that just as they would have been excited to be summoned to the White House to lunch with the First Lady, so too was the defendant. The defense provided details about the map room, the pool, and the need for self-composure, in an effort to demonstrate that Rosen was affected in ways the jurors could relate to, no matter their political affiliation. In any trial, there are at least two primary storytellers. Any advocate wants to be the most engaging, believable storyteller in the courtroom, the one who captures the jurors' attention and trust. Such authority is the very essence of ethos. Strategic appeals to emotion and rhetoric that embraces shared values can help establish such authority during opening statement. Next week, we will turn our attention to the other essential elements of persuasion: logos and pathos.