Pathos
In the opening statement, the lawyer who is attempting to persuade the jury must remember that despite the task of introducing the case, they have another duty, which is to instantly create a favorable opinion from the audience. Many lawyers argue that the lawyer must be empathetic and understanding of the jury while speaking so their manner is sincere, and his attitude is bold and commanding.
Another reason is the law of primacy, which states that “an idea once accepted by the jury in the opening statement of a case has a tendency to become more fixed as time goes by…” (Costopoulos, pg 73-74). Therefore, if an opening statement is somewhat persuasive in itself, the tone and impression set will remain with the jury for the remainder of the trial processes-if done well. Some argue that introducing a significant number of evidence is beneficial to the trial and persuasion of the jury in the opening statement, but research has found that “construed as a technique of schema…in that it appears to guide memory” (pg 283). Making false promises to the jury in the opening statement about facts of the case, and providing more in your speech than the evidence does will also be an effort gone unnoticed by the jury. The main goal, is to persuade them in your favor immediately and this will only cause them to expect more than the trail can provide.
Aristotle said, “…the personal goodness revealed by the speaker contributes nothing to his power of persuasion; on the contrary his character may be called the most effective means of persuasion he possesses” (pg 63). Interpreted, Aristotle makes the point that a lawyer’s personality or personal preferences, and their personal ethics, although generally influential, do not help their persuasiveness. It is their character, and their persona they present to the audience that aides in persuasion.
Speaking fairly loud and gesticulation are usually welcomed by the jury, and make them more vulnerable to your case and persuasion. Gaining sympathy at this point in the trail through description of the case can set the jury up for the cross-examinations.
Logos
Logos refers to persuasion in the sense that the argument being made makes logical sense to those being persuaded, in this case the jury. An attorney attempts to present facts in a way that will lead the judge or jury to the conclusion they want, but this conclusion must be logical and appealing. Attorneys have the ability to use evidence and facts they gather throughout the trial preparations and make a logical sequence of events to present to the court the day of. As Aristotle said, “the orator must not only try to make the argument of his speech demonstrative and worthy of belief: he must also … put his hearers, who are to decide, into the right frame of mind” (Walker, 3).
The use of evidence is crucial in the opening statement to aid in the persuasion process. Explanation of the evidence and the plot that is already in the mind of the jury lays the pieces of the puzzle before the jury and helps in persuading them because they logically can expect what will happen during the trial. Walker writes “Good lawyers compose their stories (arguments) with careful attention to the evidence and the law. But they reach beyond these givens to tie the circumstances, which are always unique, to plot lines already deeply in listener’s minds, to mythic narratives whose familiar moves reveal how the world is and how people, faced with fateful choices, act for good and for ill. This larger meaning is crucial to the story’s effectiveness as a means of persuasion, a rhetorical device” (Schrager, p.7).
Ethos
One can argue that the foundation of rhetoric is ethos, or the credibility of the speaker. If the persuader, in this case the attorney, establishes credibility then their ability of pathos (gaining emotion from the audience and creating a connection), and logos (creating a logical sequence of events using evidence) come easily. Seeming knowledgeable, trustworthy, honest, and attractive can establish a trust between an attorney and a jury. Think of it as going on an interview, and although your portfolio and resume speak for themselves, the way you compose yourself as well as the way you dress and impress your potential employer will provide the foundation for your academic successes and experience. Walker writes, “…attorneys who argue their objections fervently, who speak loudly, who establish and maintain eye contact with jurors, and who move freely about the courtroom establish more credibility than those attorneys who seem nervous and uncertain.”
A cautious measure to keep in mind is how your persona is viewed as an attorney. If you are seen as being deceitful, although you are trying to in a sense outsmart your opponent, the jury will discredit you immediately and assume you are in fact lying on some level. It is not just what you say, but in fact how you say it.