January 21, 2013The Main Message
In my last post, I wrote about a brief filed with the West Virginia Supreme Court on behalf of the widows of two men who died in a mine fire. In that brief, the last sentence of the Summary of Argument section—a position which should invariably contain a very powerful and memorable sentence—squandered its power in a hail of vagueness and prepositional phrases:
It is clear, therefore, that under West Virginia’s settled principles for determining the existence of a tort duty of care, a private mine inspector whose negligence causes a miner’s death owes a duty and is liable to the deceased miner and his heirs.
I said in the prior post that the emotional heart of the sentence was “causes a miner’s death.” Now I want to say some more about that, and about the emotional structure of sentences and arguments in general.
There is a big difference between the emotional heart of a sentence and the grammatical heart. The grammatical heart of the sentence above, discoverable by some rudimentary sentence diagramming, is “inspector/owes duty [and] is liable.” The grammatical heart of my final rewrite of the sentence was very similar: “inspector/is accountable.” When your judge thinks back on that brief, though, he or she will not be thinking about inspectors being accountable, but about miners dying.
That’s if you’re writing for the plaintiff. If you are writing for the defense in the mine-fire case, your tale of pathos will not be so picturesque or so simple, but you must find it. It may be that mine inspections involve a balancing of mutually inconsistent safety concerns, so that (for example) improving ventilation means reducing easy access, and an inspector must make, and be free to make, crucial judgment calls. It may be that liability for mine inspectors would chill the mine inspection industry and result in less safety and more deaths. It may be something else suggested by the facts of the case. It’s one of your most important jobs to figure out your emotional themes early in the case and to press them with the judge (and later the jury) at every reasonable opportunity.
Lawyers sometimes resist dealing with pathos, arguing that the law should not concern itself with emotion, but should dispassionately apply governing rules to the facts. Whether that is an accurate description of what the law should be I will leave to others to debate; I will just point out that it is completely false as a description of what actually happens. Judges, juries, and all other human beings care about and are influenced by their emotions, whether they will admit it or not. And if you ignore that fact, you aren’t doing your job. Your brief must tell the judge not only what the law is and how it leads to the result for which you are advocating, but also why the judge should want to rule in your client’s favor.
I think that one reason that lawyers may shun dealing with pathos is out of fear of failure: they worry that if they try to tackle the pathos in the case, they will fail to tell a persuasive and compelling emotional story. But if you don’t get this right, your briefs will fail again and again, even when you “have the law on your side.”