Greek rhetoricians held that there are three ways to persuade—ethos (credibility), logos (logic), and pathos (emotion). Of these, I think logos is the least important. Juries and judges base their decisions more on a lawyer’s credibility and reputation, along with their gut-feelings about a case, than on logic. There could be evolutionary reasons for this—our visual and instinctual brain is much older than our rational, linear, logical brain.
One of my heroes is legendary Houston civil attorney Joe Jamail. He doesn’t take jack from anyone. He won the largest civil verdict (billions of dollars, not millions) in the Texaco v. Pennzoil case. He says: “If you’re not emotionally involved, your client is not getting the best effort.” One of my other heroes, Gerry Spence, basically says the same thing.
Recently, I went to federal court for a detention hearing involving my client, a physician-researcher charged with possessing child pornography. The case was covered nationally and internationally.
The Government moved to detain him so that he couldn’t be released on bond. The law required that he be detained unless we met a heavy burden to show the judge otherwise. I researched prior federal child pornography cases and found very few defendants who were given pre-trial release.
Before the detention hearing, I met my client and immediately felt a bond with him. He had kids about the same age as mine, was very religious, and had things in his background that mitigated his actions. I could understand him, and he became more than a client—he became a friend—right away.
As I prepared for the detention hearing, all I could think of were his three kids, who were all less than 10 years old. I thought of my own kids. I reflected on how what his kids would do if their father were in jail pending trial. Who would explain to them why their dad wasn’t around? Who would pay for their school tuition, much less the everyday stuff? Who would help them with their hobbies and homework? Who would they turn to if other kids at school teased them? And so on.
It’s when I thought of my client not being with his kids that I discovered the emotional core of the matter. When I thought of him without his kids, and them without him, I thought of myself without my kids, and them without me. And that resonated with me emotionally.
This kind of emotional mirroring is a basic part of our psychology. We are magnets, attracted to people we can relate to, especially on an emotional level. That’s why jurors acquit defendants they can understand and empathize with, regardless of whatever “logical” arguments the other side makes.
At the detention hearing, I made an emotional argument for release in summation. I talked about my client’s family. The client was sobbing. His family was present and crying. The judge nodded sympathetically and even commented during my summation how terribly sad the case was.
And at that point, it was over. I knew it was over, despite the prosecutor’s reply using big legal words and appeals to logic. The heart always wins. The judge released my client so he could be with his family.