My service as a trial court judge began on June 30, 2011. Since then, I presided over several jury and bench trials (some civil and some criminal), ruled on numerous motions and other matters, and served as a settlement judge in numerous cases. I also learned a few things sitting on this side of the bench that I wish I had known back when I was a trial lawyer.
To be fair, I probably had heard most of these points before taking the bench, but things just look different when one is serving as a neutral decision-maker under the rule of law rather than as an advocate. A trial judge tries to correctly apply principles of law (some of which are clearer than others) to facts that are often in dispute. Depending upon the specifics of a case, there may or may not be much room left for the exercise of discretion. A trial judge, however, may also be called upon expressly to exercise discretion and is afforded a fair amount of latitude when doing so. In the context of civil litigation, examples include resolving discovery disputes (especially those involving the "rule of proportionality" under Fed. R. Civ. P. 26(b)(2)(C)(iii)), disagreements over scheduling and extensions, and requests for temporary, preliminary, or permanent injunctive relief where the judge is often required to balance the hardships and equities facing the parties and also consider the "public interest." In order to be able to persuade a judge or jury, it is helpful and maybe even critical for the advocate to be able to look at the specific dispute from the perspective of the decision-maker and see things as that person will see them. That is the first thing that I wish I had known (or, at least, fully absorbed) back when I was a trial lawyer.
The additional points that I am about to make build on this insight. They are not original or new; in fact, the first three are more than two thousand years old. They go back to Aristotle and his discussion of the three primary modes of persuasion or argument and have withstood the test of time. (1) For these three points, the only thing that is new (at least to me) is my first-hand confirmation since beginning my service as a federal district judge that Aristotle's advice works.
The principles that I have seen succeed can be remembered with a mnemonic device using the acronym P-L-E-A, which, to a lawyer, refers to an allegation made by a party in support of a cause. To persuade and advocate for a plea is the heart of the work of the trial lawyer, so P-L-E-A should be easy to remember. But I am going to go beyond Aristotle's three ancient principles and add one more from modern learning based on the latest developments in cognitive science, psychology, and behavioral economics. To remember this additional point, it might be easier to remember the word "P-L-E-A-S-E." Every trial lawyer needs to be respectful and polite to his or her audience, whether judge or jury, in order to be persuasive. This requires the use of the word "please" or at least that attitude. Looked at another way, every advocate hopes that his or her argument will "please" the decision-maker; the classic opening for any legal argument is, after all: "May it please the court."
P-L-E-A-S-E it is, then. It stands for: Pathos, Logos, Ethos, and the Alternative Systems [of Thinking] by Everyone.
Pathos refers to emotion. As used by Aristotle, it means trying to create a certain favorable disposition in the audience. It is a form of argument that appeals to the emotions of the listener or the reader. This can mean different things to different people. In the legal context, I consider pathos to have two dimensions. First, it is an appeal to "justice." It is an argument that seeks to persuade the decision-maker that justice requires, or at least supports, a particular outcome.
Some may think this is inconsistent with a neutral application of the rule of law. Judge Learned Hand tells the story of when he and Justice Oliver Wendell Holmes, Jr. …