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Litigation: Pandemic persuasion | Aavisa Butt

Wednesday, June 30, 2021 @ 12:53 PM | By Aavisa Butt


Aavisa Butt %>
Aavisa Butt
Many of us would argue that high school essentially taught us nothing for law school. Neither did university. It was the LSAT score and the GPA that mattered a lot. But little do you, or the next client you will represent in court, know that the education system did equip us with the most important skill for litigation. We do it every day, I’m doing it right now, and guess what? It worked. Because you’re still reading.

To persuade is to practise — literally — the art of litigation. In a time where mastering it is of utmost necessity, the pandemic paranoia is proof it governs us. Formulated by Aristotle are three rhetorical devices; pathos, ethos and logos, which are considered modes of persuasion. They can extend beyond literary usage and form extraordinary results when merged with law, ranging from compelling argumentation to stronger negotiation. So, how can the modern lawyer practise the pillars of persuasion while practising law? By becoming storytellers. After all, the laws of today are the successful stories of our precedent times. And as lawyers, you advocate for the continuation of telling these tales.

A good lawyer is like a good writer. Both inevitably appeal to emotion when you ask, “Why should I care?” We have a finite number of letters to create an infinite number of stories and pathos, the appeal to emotion, is part of persuasion. Thus, advocacy is storytelling and to master the art of persuasion is to master the art of writing. Every lawyer has written a great deal in law school, but examining case after case, beyond counterarguments and conclusions, one quickly learns there is little room for emotion. But during litigation, the suppression of emotion will only further alienate you from the passions of practice. Your clients count on you to represent them, and where their individuality ends, yours begins.

When “Black Lives Matter” was trending on social media last year, it was not the first time the phrase had been used. In fact, it was first introduced in 2013, but the protests of 2020 were so profound that they quickly turned into a powerful hashtag that told a story about police brutality and racially charged violence. When there’s enough emotion and it’s appropriately directed to impactful mediums, that’s when the strongest persuasion occurs. This too is advocacy. Online activity being at its highest point in history gives thee good lawyer unprecedented opportunities to connect now. Interact with your clients, establish a social media presence that speaks of your individualized approach to practising law, address questions pertaining to the law and what you deem important. If you’re a bit more technical and have a considerable number of successes, explore the possibility of creating a website where you can add more personalized content towards your time as an advocate. Write, write, and write — you’ll be astonished at what the power of emotion in literature can do.

We have understood the influence of words, the importance of merging the art of writing with law, but we often forget our clothes speak for us, as well. Ethos, the appeal of credibility, is not simply about titles, but of clothing, too. For some fashion advice from a historically renowned lawyer and Supreme Court justice, let’s turn to the late Ruth Bader Ginsburg. If the name itself does not contain enough weight, then perhaps her collection of collars will. The honourable Supreme Court justice not only provided dissenting opinions, but also evoked a fresh sense of fashion to the courts that connected to her decisions. In other words, she personalized what she was verbally communicating with her clothes. Simultaneously, with the decisions she made within the rooms of justice, Ginsburg built her credibility and remembrance around something she literally wore.

Lawyers must also look the part. It can be tempting to slip into a sweatshirt during a Zoom call, but the client is like a consumer; they will observe everything before signing off on anything. You may not realize it, but your clothes speak for you, before you, and can really impact your credibility. Be comfortable in what you’re wearing, but no matter what you adorn, think about how dressing up can build you up. However, for the sake of professionalism, dress in a way that you wouldn’t mind Justin Trudeau seeing you in. If it helps, the prime minister of Canada has to dress in a way that millions of people wouldn’t mind seeing him in. Besides, when was the last time you saw a headline that read, “Trudeau has no style!” Never. Go on and search it up. I guarantee you won’t find it.

We’re given the facts, now we must tell the story. Every lawyer advocates for what they consider is right. In a criminal trial, the defence fashions the facts in a positive light so that it may be shed on them. It doesn’t matter what the Crown wishes to convict their client of. All that matters is that the lawyer thinks they’re right. They dust the accused’s flaws away and present a flawless defence, all from reason. How? By looking for flaws in the first place. Logos, meaning logic, formulated from thinking, is at play here.

The news is an excellent example of following the rhetorical devices. You think that the news is right because what it claims to present is factual, but there’s a lot more persuasion at work in their stories. You pause to listen to the reporter representing the local news channel because there’s credibility in who they speak for, considerable logic in what they say, while you evoke the emotion after hearing about the Canadian housing market for the nth time. Ethos, logos, then pathos. Hence, the link between the credibility and the emotion are the flawless facts. As lawyers and storytellers, especially as ones in the pandemic, you need to look for the flaws.

Remember the LSAT? It is designed to test logos; logical reasoning, riddles, games. You were being prepared to practise law while practising logic for the LSAT by looking for flaws. Whether that’s in your drafting of contracts, presenting legal information on your social platforms/to your clients, or even towards yourself, use precedent data to tailor your practice in a way that fits you; all so that you can shed a positive light without being illogical. Reasonably, it should be impossible for the lawyer to not strive for flawlessness.

When you persuade through these rhetorical devices, you also ultimately gain trust. For Daniel Lublin, co-founder of Whitten & Lublin, an employment lawyer and national columnist for the Globe and Mail, establishing trust is a lot like selling. During our Zoom call, he comments, “We call it negotiating, but it’s really selling. I’m selling to the client, I’m selling to the other lawyer, and I’m selling to the judge. In every other industry, it’s considered business. It’s no different here.” Well, consider us sold.

Though the pandemic has attributed itself as a factor in practising law, the lawyer will remain triumphant while making use of pathos, ethos and logos, even when the world is free of COVID-19. The law is nothing more and nothing less than persuasion. Jurisprudence is a cumulation of the stories that have found themselves in the books of law. What is legal today is the reflection of the power our words hold. And none of us are, thankfully, exempt from following the law.

Aavisa Butt is a second-year student pursuing an honours degree in English and human rights at the University of Waterloo.

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