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Ethos, pathos, logos, and other human biases: What litigators need to know

By | - December 5, 2017

Steve Benmor is a recognized divorce lawyer, family mediator, arbitrator, speaker, writer and educator. Mr. Benmor has worked as lead counsel in many divorce trials, held many leadership positions in the legal community and has been regularly interviewed on television, radio and in newspapers as an expert in Family Law.

Judges are appointed based on intelligence, ethics, integrity, experience and education, including past case experience. It is these very same qualities that sometimes pose barriers to persuading a judge of your conclusion. Judges, like all people, have a lifetime worth of influences, observations, education, not to mention life experiences from their own cases to permit them to form impressions and judgments. So is it any surprise that judges have views, biases and predispositions to the cases they hear ?

A heuristic is a mental shortcut that allows a person to solve a problem and make judgments quickly and efficiently.  They are sometimes called “a rule of thumb”.  In family law, a common heuristic is the thinking that parents who experienced domestic violence cannot have joint custody. Although there are cases where joint custody may be ordered by judges, the mental shortcut or “rule of thumb” is that, to jointly parent a child, the parents must have a good level of communication, cooperation and balance of power in their relationship – which are often absent where there is a history of violence.

Ethos is where the audience is persuaded by the credibility of the speaker, more than the content of their speech.  In litigation, there are advocates that are considered reliable, conservative and trustworthy, and therefore, convincing.

Pathos is a tool of persuasion used to appeal to the listener’s emotions.  Of course, most family law submissions employ pathos to elicit the outcome sought – whether the submission relates to access to children, the right to occupy a home or the need for support.

Logos is where the speaker utilizes logical reasoning to persuade. For example, it is logical that a person needs to first upgrade their vocational skills before securing better employment, leading to a higher amount of spousal support.

Confirmation bias is where a person tends to notice and look for information that confirms her existing beliefs, while ignoring anything that contradicts those beliefs. It is also known as a type of selective thinking. Think about the power of an opening statement before the witnesses are called to testify.  It is understandable that any human would be looking for facts to support a conclusion.

So next time you are appearing in front of a judge intending to deliver your arguments in the hope that she will be led to your conclusion, consider the cognitive factors that may support, or obstruct, the process leading to the outcome.