DON’T FORGET ABOUT ETHOS

Dr. Anthony Fauci has it all. From a standpoint of persuasion and credibility, he is the full package, whose presence at a podium jumps beyond his modest 5’ 8” frame. In a recent poll conducted by the University of Northern Florida, Dr. Fauci had the approval of 85% of registered Florida voters, nearly doubling that of the President’s approval as a reliable source of information. Dr. Fauci is straightforward but calm, expert but accessible, serious but pleasant, authoritative but likable. Just the other day, in the White House press briefing, he made a passionate appeal (pathos) about social distancing based on the science and the medicine (logos). His stature as a reliable and caring source of information seems well earned. What can we learn from Dr. Fauci? For one thing, credibility is based on more than just expertise and competence; it is to a large degree based on attitude and sincerity.

In the important efforts to consider pathos (the emotional elements and appeals of the other side’s case) and develop logos (your logical and rational appeals in the case), litigators, at times, forget (or perhaps just do not focus enough) on the most important of the three types of appeals – ethos. Why is this the most important of the three? As we used to teach in Public Speaking 101, if one’s ethos is high, it is much more likely that an audience will be receptive and moved by one’s logical and emotional appeals.

But ethos is not just something someone somehow has; it should be thought of as an active process, a strategy to be developed and is constantly in development. It is not what someone has; it is something that someone can create, mold, develop. This brief treatment of ethos for trial lawyers will (1) review five key factors of credibility, and illustrate their import with a few examples from actual trials; (2) emphasize the importance of preference in an audience’s/jury’s judgment; and (3) consider the new dynamics of legal argument and presentation through new mediums, such as Zoom.

Elements of Credibility

Joseph Folkman, a behavioral statistician, recently reported in Forbes his research on communication skills versus knowledge and expertise. It is based on his extensive study of managers and direct reports in U.S. businesses. His findings are not overly surprising, but nonetheless instructive to review. In short, the impact of perceived credibility on communication effectiveness is “extraordinary.” High credibility (which has been earned over time) is more powerful than just communication skills. Studying “the relative importance” of expertise versus “excellent communication skills,” optimal credibility is when a speaker has high expertise and high communication skills. Seems reasonable enough. But the reason I bring it up is that overall credibility and effectiveness is based on a perception of an amalgam of factors. And trial lawyers are not likely to come to a jury with an earned credibility; rather, they must earn credibility quickly (relatively speaking) through their actions and presence.

Let’s briefly review five typical elements of credibility. These five elements of credibility can be in accord or in contrast with each other in the minds of the audience. A speaker can be high in one element and ultimately fail to persuade because other elements confound the speaker’s effectiveness. To simplify the complex, here are five basic aspects of credibility: (1) expertise and competence involves the sense that a speaker has the knowledge and experience to opine on a given subject; (2) sincerity or honesty involves the sense that a speaker has a goal of helping an audience understand the truth of a situation and/or that the speaker is authentic; (3) likability involves, often unconsciously, the sense that a speaker is a pleasant person and that one would like to be around them and listen to them; (4) dynamism involves the ability to engage with and attract an audience’s attention; and (5) similarity is the perception of an audience that a speaker is “like” them (either objectively – visibly perceived through characteristics like gender, ethnicity, even social-economic conditions, or subjectively – internally perceived through characteristics of shared values or shared beliefs).

An example of “optimal credibility” in the courtroom: high competence and humility (likability). We were working with a trial attorney on a Shadow Jury project on a significant securities case in Federal Court in Seattle, Washington. The shadow jurors perceived that the court disliked our trial attorney. This did not impact their views of his credibility because he never seemed to be outwardly concerned by negative rulings and, at one point, after his attempt to ask a particular question was objected to and sustained three times, our trial attorney smiled, nodded his head and said, “Undeterred, I will try one more time, your honor.” I recall the pleasant smiles on the faces of the actual jurors. They were rooting for him.

An example of “optimal credibility” in the courtroom: dynamism and competence. We were working with a seasoned trial lawyer in Cincinnati, Ohio, trying a negligent supervision case. The attorney had just done an expert, precise, and logical job of eviscerating the opposition’s critical witness in the morning court session. But I had to give tough feedback because although all the information was there, it was not clear that the jury knew what was important because “everything was.” The jurors’ faces were blank; pens were not moving. Fortunately, the examination was not over and at lunch we identified four key admissions we needed to review and “get” from the witness. It was a simple innovation. The attorney used four different-colored file folders. He continued the examination and when he got the first key admission, he cocked his head slightly, paused, nodded and said, “thank you,” and calmly closed his yellow folder. Pens were moving. He opened up the blue folder and the jurors moved a bit more forward in their seats, pens ready, waiting to see what key fact was “in” the blue folder.

These were great examples of how elements of credibility can work together. There are plenty of examples of where these elements conflict. I recall another Shadow Jury project in Dallas, Texas. It was a medical malpractice defense and I interviewed the shadow jurors after our defense expert had just finished being cross examined by plaintiff counsel. I asked the “shadows” what they thought of Dr. X and they all gave me a version of “Oh, that asshole?” My job is not to argue, so I said, “OK, but what was significant about his testimony?” Their answer: “I didn’t like him.” I got that the first time, to be honest. I tried again. “But what about his testimony?” Their answer: “He was so arrogant.” Finally, I asked “What about his testimony regarding the use of Verapamil?” To which, they all responded with some variation of “what?” Expertise took a quick back seat to “(un)likability.”

One can be competent but be perceived of as aggressive and unlikable. One can be an expert and also be bone dry in presentation and thus unmemorable. One can be dynamic, but insincere. One can be objecting too much and/or in ways that are perceived of as expressions of worry or concern, and if those objections are regularly overruled, expertise and likability may decline.

Credibility is personal and the acceptance of a position, a story, or even a singular key fact may be based on a preference jurors have for a speaker. Preference is an important concept because it points us to understanding that jurors, as all people, to some degree do what they want to do.

Judgments and Preference

Part of the point I am trying to emphasize is that performance in the courtroom is a precious element of success. Evidence is only important if jurors choose to consider it germane, memorable, and of import. Credibility is key. It needs to be developed, crafted, and maintained for the success of the client. And, paraphrasing famous quotes about “reputation,” credibility can take a while to develop and a second to ruin.

The importance of preference as a product of credibility should not be understated. The judgments that jurors make in a case are not just based on the underlying facts and their emotions about case facts. Their judgments made partly based on preferences about the trial team is a natural and performative projection and extension of the party in the lawsuit. The advocacy and attitude at trial is a large part of how the jury will evaluate and prefer one party over another. Sometimes it is better to be likable than to be right.

Alasdair MacIntyre, a 20th century Scottish moral philosopher wrote about “Emotivism” which is the body of thought that “all evaluative judgments and more specifically all moral judgments are nothing but expressions of preference, expressions of attitude or feeling…” Thinking simply about how this works in modern politics, people tend to feel “something is wrong” because they don’t “like it.” However, people feel that their preferences are actually fact-based, reasoned, and not emotional. They are wrong. This general view of human decision-making and jury-behavior is wholly consistent with the body of work known as “motivated reasoning,” a perspective that informs our approach to jury consulting and trial strategy.

This is important for trial attorneys to consider because message effectiveness based on a preference for a speaker can be so powerful. I recall a post-verdict interview after a smashing success in a Las Vegas, Nevada, jury trial. The jury nicknamed one of the lawyers “Jaws.” They loved him. When I asked where the name came from, they were uniform in their response: “By the time the witness saw the fin, it was too late!” The jury said they waited in anticipation for his cross examinations. The jury was involved in his performance, and involvement with a source of information is a central factor in persuasion.

And now, with litigation in the era of COVID-19, new challenges for credibility have emerged. While we are in the process of assessing and analyzing all of this as I write, here is an initial look into some of those challenges.

Zoom Credibility

The exigencies of social distancing have placed a new demand on speaker credibility. Zoom meetings, presentations, interviews, and even arguments before the court have become commonplace nearly overnight. One of our clients said that their arbitrator insisted on proceeding with the scheduled hearing and that the entire hearing would be conducted online or remotely. Openings, examinations, and arguments would be done screen-to-screen, the new kind of face-to-face, so to speak. It will be interesting to see if more and more hearings will be conducted this way. Is this the future for jury trials? We are all waiting to understand what the new normal will be.

How will this medium factor into the credibility assessments of attorneys and lawyers? Here are some considerations to begin pondering. Is there a difference in perceived credibility when standing versus sitting? And this goes way beyond the Winnie the Pooh problem (you know, with a shirt and no pants). We are working on developing ways to maximize the power of the speaker’s visual presentation in this remote environment. Will limitations of the screen limit the impact of nonverbal style and skills in the delivery of messages? We are working on developing the use of tone and gestures as key elements of ethos in a remote presentation. Will eye contact with the device’s camera be disconnected from the projection to the actual audience and does that disconnect factor into the perception of the importance of eye contact built into humans over eons? We are working to help advocates “fix” and locate intended audiences of the address and argument. Will the lack of immediacy, not having an intuitive “feel” of being in a room filled with audience members, reduce the role of credibility? We are working on the practical ways to maximize, enhance, and influence the feel for the situation. How will visual aids, the visual advocacy or demonstrative evidence, be limited in this new Zoom environment? We are working on the strategic use of visuals in this new medium of oral advocacy.

To sum up these questions together, in the effort to understand how to increase communication effectiveness, how can a speaker on Zoom (or other medium) make use of all the elements of credibility, logos, pathos, and especially ethos in a remote participant environment?

Conclusion

We are now conducting witness preparation sessions, attorney opening and argument rehearsals, and focus group presentations, all with the new remote environment reality in mind. Employing the lessons we have learned about speaker credibility to this new reality is proving an interesting and valuable challenge.

There is so much focus on logos and pathos that too often ethos is not considered enough. But it may be the most valuable of all the appeals. The many factors of ethos and that it can be something that is better considered, artfully crafted, and practically harnessed should be a priority for the contemporary advocate. The judgments people will make about another’s position or argument is heavily influenced by preference, and preference for a speaker is front and center to the success of advocacy. All the elements of ethos and credibility should be on the mind and in the performance of the trial advocate in order to enhance the communicative effectiveness for the client.

References

• Relman, Eliza. “Anthony Fauci’s coronavirus approval rating in Florida is almost double Trump’s, according to a new poll,” Business Insider, April 6, 2020, https://www.businessinsider.com/coronavirus-faucis-florida-approval-rating-is-almost-double-trumps-2020-4.

• Folkman, Joseph. “How to Communicate When You Lack Credibility,” Forbes, April 16, 2020, https://www.forbes.com/sites/joefolkman/2020/04/16/how-to-communicate-when-you-lack-credibility/#83060ae364fd.

• Alfano, Sean. “The Truth of Truthiness,” CBSNews.com, December 12, 2006, https://www.cbsnews.com/news/the-truth-of-truthiness/.

• Elassar, Alaa. “A reporter went on air wearing a suit coat and no pants, not realizing everyone could see his legs” CNN.com, April 28, 2020, https://www.cnn.com/2020/04/28/us/good-morning-america-will-reeve-no-pants-trnd/index.html.