TRIAL PRACTICE
Classical Rhetoric and the Modern Trial Lawyer

By Paul Mark Sandler, JoAnne A. Epps, and Ronald J. Waicukauski

The average trial lawyer lacks time to read Aristotle, Demosthenes, Cicero, or Quintilian. But most trial lawyers will not settle for being average. There is gold to be mined in Rhetoric, that dusty work of Aristotle’s, along with the speeches of Demosthenes and the works of their Roman heirs. Although these classical rhetoricians lived centuries ago, their understanding of what makes a winning argument is timeless. Their techniques and steadfast belief in the rule of law are continually instructive and inspiring for modern trial lawyers. Spending time with the works of these sages will not only improve your performance in court but also give you a deeper appreciation for the rich history of our profession.

Appreciating the art of persuasion truly begins with Aristotle’s Rhetoric. In it, Aristotle identifies three elements of argument: the speaker, the argument, and the listener. He names the listener as the most important component and develops a methodology involving three primary modes of persuasion: ethos, the personal character of the speaker as perceived by the listener; logos, persuasion by logic; and pathos, persuasion by emotion. Successful rhetoricians will focus these modes of persuasion on their listeners, Aristotle argues, for the “whole affair of rhetoric is the impression to be made upon the audience.”

Aristotle observes what so many lawyers learn the hard way—that audiences differ in attitudes, beliefs, and preconceived notions about the matter at hand. Just as each receiver is different, each argument should be unique, Aristotle insists. The capacity to match one’s rhetoric to one’s audience is well served by a sophisticated understanding of human nature, habits, desires, and emotions.

It is essential to consider the key factors that influence the listener’s decision, including attitudes, beliefs, values, and personality. A person who is biased against doctors may be predisposed to reject an argument that relies on a physician’s testimony. Deeply religious people may oppose the opinions of a self-described atheist. Likewise, a juror who cries upon hearing an assault victim’s testimony could be more susceptible to tear-jerking closing arguments than a juror who rolls her eyes at emotional appeals. If such assertions sound like common sense, you would be surprised how often lawyers ignore the nature of their listeners and instead develop arguments to suit the tastes of other attorneys.

Rhetoric reminds us of the importance of conducting due diligence on the judges that hear our cases. It compels us to read a judge’s prior opinions and writings, contact people familiar with the judge, observe the judge in other proceedings, and, in some instances, conduct online research on the judge. Such investigation will help you avoid arguing directly in opposition to a judge’s preconceived notions or even prior opinions.

Although learning about jurors is more difficult than learning about the judge, there are a number of effective ways to glean information about them. When possible, obtain a jury list in advance of trial and research the individuals online. You can sometimes prepare a jury questionnaire and request that the court allow you to present it to jurors before formal voir dire begins. In some cases a full voir dire is permissible; in such cases, how you frame questions about jurors’ attitudes and beliefs becomes extremely important.

 Limited voir dire, in which counsel submits questions for the judge to ask, is a valuable opportunity to reveal vital information about the jurors. Jury consultants and facilitators can create a “jury profile” and help you strike jurors who could harm your case. Mock trials can help you learn how jurors are likely to react to your case, in whole and in part. Listening to the mock jurors deliberate can provide crucial insight into how the real jury may respond when it counts.

Your appreciation of the decision makers should inform not only the overarching theme of your case, but also your development of that theme—the structure of your opening statement, the witnesses you select, the order in which you call them, the questions you ask on cross and direct, and the tone of your closing argument.

Aristotle believed that logos, or logical reasoning, should be of primary concern when developing the substance of an argument. Understanding the rudiments of Aristotelian logic in the context of persuasion is beneficial for three important reasons: Arguments are more convincing when based on sound logic, understanding basic principles of logic will enable you to build watertight arguments and avoid fallacies, and you will be able to refute opposing arguments by identifying their logical fallacies.

Rhetoric also makes clear that even a logically impeccable argument will fail if the audience does not trust the speaker, for Aristotle viewed ethos as the most important aspect of argument. He defined ethos as the character of the advocate as perceived by the listener. What qualities will boost your ethos? Integrity, intelligence, friendliness, sincerity, conviction, professional appearance, and enthusiasm, among others. Aristotle identified integrity as the most important of these. Admitting unfavorable facts, a bit of self-deprecation, and demonstrating a sense of fair play can help win you points for integrity, as will avoiding ad hominem attacks and extreme positions.

A healthy ethos will help you apply in court what Aristotle believed was the third-most important component of advocacy: pathos, or emotion. Aristotle recognized that effective advocates use emotion to provoke listeners to identify with their causes (i.e., their clients). Applying Aristotle’s lesson in court, trial lawyers work to humanize their clients and develop arguments with moving stories and figurative analogies. Pathos is a powerful force, and it is best to rely on it with moderation and always hand in hand with sound reasoning. For Aristotle, the marriage of pathos with logos, along with a high ethos, is the foundation on which successful, listener- centered arguments are built.

The only trouble with Aristotle’s Rhetoric is that it is a theoretical text. To see theory in practice, turn to Demosthenes. He forcefully substantiated his assertions with evidence and facts. He followed each assertion with a presentation and conclusion, often using short, precise sentences. He relied on figurative language, which works particularly well when the comparisons made strike an emotional chord with the listener.

Cicero gave great attention to the arrangement or structure of his speeches. In considering arrangement, Cicero recommends placing the strongest points first, following them with weaker arguments, and concluding with strong arguments. The doctrines of primacy and recency—we remember best what we hear first and last—spring from Cicero.

No review of classical rhetoric would be complete without mentioning Quintilian. Persuasion was his aim and, like Aristotle, Quintilian gives attention to knowing your listener, the temperament of the judge, and the proper use of logic and emotion. He advises that assertions must be supported by facts or law and underscores the value of “charm.” In other words, he appreciates the importance of a well-timed smile, a laugh, a courteous bow. He suggests that one begin an argument with a concise statement crafted to draw in the listener.

Spending time with Quintilian, Cicero, Demosthenes, and Aristotle will improve your advocacy skills. Go to the library now and begin reading. And tell your colleagues that you will be late returning to work because once you begin your studies, you will not be able to stop.

 

  • Paul Mark Sandler is a partner with Shapiro Sher Guinot & Sandler in Baltimore, Maryland; he may be reached at pms@shapirosher.com. JoAnne A. Epps is dean of the Temple University Beasley School of Law in Philadelphia, Pennsylvania; she may be reached at joanne.epps@temple.edu. Ronald J. Waicukauski is a principal member with Price, Waicukauski & Riley, LLC in Indianapolis, Indiana; he may be reached at rwaicukauski@price-law.com.

    Copyright 2010

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