Ethos and Persuasion
September 26, 2010
A successful plaintiffs' lawyer friend describes trying cases against big firm lawyers as being "taking candy from a baby." He is right, of course. University of Chicago law professor Todd Henderson illustrates why.
Todd Henderson's Ethos.
[If you're not familiar with Todd Henderson, the rest of post won't make any sense. Here's a summary of Henderson's arguments, and here is a shorter summary from the Chicago Tribune.]
Aristotle's Rhetoric - which most people don't even pretend to have read, even though it's free - could have spared Henderson some grief:
Of the modes of persuasion furnished by the spoken word there are three kinds. The first kind depends on the personal character of the speaker; the second on putting the audience into a certain frame of mind; the third on the proof, or apparent proof, provided by the words of the speech itself. Persuasion is achieved by the speaker's personal character when the speech is so spoken as to make us think him credible. We believe good men more fully and more readily than others: this is true generally whatever the question is, and absolutely true where exact certainty is impossible and opinions are divided. This kind of persuasion, like the others, should be achieved by what the speaker says, not by what people think of his character before he begins to speak. It is not true, as some writers assume in their treatises on rhetoric, that the personal goodness revealed by the speaker contributes nothing to his power of persuasion; on the contrary, his character may almost be called the most effective means of persuasion he possesses.
Put differently: If you're a whiny, smug little shit, no one cares what your argument is.
We can call this irrational. Fine. Go cry yourself to sleep, or as big firm lawyers do, complain about "dumb juries."
Aristotle explained this stuff 2,000 years ago. Nothing has changed since Aristotle's time. You can refuse to listen to Aristotle, and continue losing. Or you can listen to Aristotle, and continue winning. There is, however, a catch.
Ethos is hard to fake. It's rare to meet a blogger who is different in real life than he is on his blog. If you write enough, you tell us about yourself. All writing is autobiographical.
Henderson's ethos was that of a sniveler. In his post, he whined. When people pushed back, he continued whining. When his wife yelled at him, he quit blogging. (!)
Ethos can be modified, but it requires something few of us have. In an era of self-indulgence, critical self-awareness is unusual. A person who wants to persuade - rather than vent his spleen - must continually ask himself: How am I coming across? Do I sound like an asshole? Do I sound angry, self-involved, or smug? Am I whining?
How many people know they are pretentious, self-involved assholes? "Know thyself" is another ignored Greek teaching.
If you want to persuade, your ethos matters above all else.
Todd Henderson's Point.
Todd Henderson actually had a really good point. Here is the issue: Will raising taxes on families earning $250,000 help the economy?
To anyone not earning $250,000, that question seems remarkable.
Yet how many "poor" people in the United States have DirectTV and cell phones? My baristo bought himself and his wife an iPad. If poor people are allowed to have cable television, cell phones, and computers: Why isn't a "rich" person entitled to his gardener, nanny, and house keeper?
Who has read the Millionaire Next Door? The message of the Millionaire Next Door was, to my 19-year-old eyes, shocking: Most people you think are rich, aren't. Rich is today defined by status symbols rather than financial freedom. If you're a job loss away from destitution, you are poor.
All of the trappings of the rich cost money. I know plastic surgeons who live paycheck-to-paycheck. A friend of mine in jiu-jitsu had to be careful not to injure his hands. He told me that, "If I didn't work for four-to-six weeks, I'd be bankrupt."
In the United States, almost all of us are a job loss from insolvency. When we get a raise, we think about what we can spend it on. We don't think: "I'm now earning 10% more than last year. Last year, however, I was able to live a nice life. I shall therefore save this 10%." Nope. Our consumption swells into our waists. We grow into our fat jeans.
In America, everyone spends money on the same stuff. People buy as much home as they can "afford." People buy as much food as they can "afford." When I was a kid, my parents bought the thirty-nine-cents-a-pound ground beef. Rich people eat meat, too, but it's steak instead of ground beef. To my parents and to the rich, both spending patterns were normal.
Raising taxes on people who live paycheck-to-paycheck is going to harm the economy. In the United States, consumption is the tide floating everyone's boat. We want people buying $5 lattes and $50,000 BMWs. Strike that: We need them to.
Thus, to save the economy, it might make more sense to tax wealth instead of income. If a rich person is sitting on a billion dollars, it'd be better for the economy to force him to invest his money. Money is like soil: It should not be allowed to remain fallow. Or so we could argue.
I'm not sure taxing wealth is a great long-term strategy. I don't know what the answer is. I do know, however, that raising Todd Henderson's taxes is not going to be great for the economy. Some $12/hr. baritso or $20/hour gardener is going to lose his job. Is that what we want?
Had Henderson not established himself as a whiner - that is, had he focused on ethos - then perhaps we could have had a useful debate on tax policy.
Instead, we screamed at Todd. He cried himself to sleep after his wife sent him to bed with no dinner. And we're still in an economic depression.
What all of this says about our national ethos is too disturbing for me to think about on a sunny Sunday afternoon.