Class Action Countermeasures : Class Action Lawyers & Attorneys : McGuireWoods Law Firm : Complex Litigation, Mass Torts

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As this blog has progressed, I've posted a few entries about how rhetoric and class actions interact. I've mostly assumed that everyone had a least a basic grounding in rhetorical techniques. But let's back up briefly. I'll start with a recommendation: if you'e interested in practical rhetoric, pick up Jay Heinrich's Thank You For Arguing: What Aristotle, Lincoln, and Homer Simpson Can Teach Us About the Art of Persuasion. Thank You for Arguing is hardly the only book on rhetoric out there, but it's one of the clearest and most practical. There are few better places to start. And early in the book, Heinrich explains in very clear terms the three classical components of rhetoric: logos, ethos, and pathos.

Logos is the appeal to pure logic. Does the argument make sense? Does it still make sense if you follow it to its logical conclusion? Logos is what most lawyers learned in law school.

Ethos is the appeal to credibility. As Heinrich puts it

In rhetoric, a sterling reputation is more than just good; it's persuasive. ... An audience is more likely to believe a trustworthy persuader, and to accept his argument.

A lawyer's ethos can come from a number of areas, including her professional reputation, the way she conducts herself in court, and the firm she has associated herself with.

Pathos is the appeal to pure emotion. According to Heinrich:

Logicians and language snobs hate pathos, but Aristotle himself--the man who invented logic--recognized its usefulness. you can persuade someone logically, but ... getting him out of his chair to act on it takes something more combustible.

(Emphasis in original.) When plaintiffs' lawyers or prosecutors focus on the victim's story while they're establishing liability -- that's pathos.

So, what does all this have to do with class actions? Class actions are lopsided when it comes to pathos. Rhetorically, they're all about the underdog taking on the big corporation. And corporations by themselves inspire little sympathy or empathy. So, rhetorically, how does the defense lawyer defend against a class action? By focusing logos and ethos. There are many, many logical reasons why a class action may not be viable. And ethos--the defendant's credibility--is almost always within its control.