Before he entered politics, John Quincy Adams was a professor of rhetoric at Harvard University. You will not find too many college faculty members with that job description these days. Time was when rhetoric was an established, indeed venerated, academic subject of scholarly inquiry, often characterized and categorized by Aristotelian concepts such as the epideictic, forensic, and deliberative. The showy characteristics of the first of these were prized as entertainment, but the second and third concerned more serious stuff, vital as a matter of public life. Governing, as they did, the manner of speech in legal proceedings and political activities, respectively, they were, had to be, a focus of intense intellectual concern.
These Aristotelian categories call to mind that good and effective speaking and writing are always focused on the objective of the speech. This is most often determined by the audience in question. No one understood this better than Socrates, whose preferred form of rhetoric comprised his famous use of irony, which in the parlance of his day (and long afterward) was not something that provided some kind of after-the-fact commentary on one’s conduct or an outcome that seemed justly retributive. It was instead a carefully calibrated hiding of one’s own wisdom to achieve a particular end with a particular interlocutor. His rhetoric was tailored to have his interlocutor think for himself and therefore had to be individually appropriate to him.
What are you trying to accomplish? And with whom? These are the first and most essential questions for good rhetoric. Trying to impress an audience with your verbal skill is not the same as trying to persuade a court to free your client. Nor is it the same as convincing a deliberative body of the soundness of a certain course of action that might result in appropriate legislation. In all cases, you must consider what you want to have happen and adjust what you are doing to both whom you are addressing and where you want them to go. Given that objectives and audiences differ, a one-size-fits-all or formulaic approach will be ineffective at best and disastrous at worst. No two circumstances are just alike, even within the broad categories of types of rhetoric Aristotle allows. Everything depends on context and the specific people and issues before you.
Professors of rhetoric may have become a thing of the past, but rhetorical concerns are no less compelling today. Their demands are all around us, and we forget them at our peril. Americans were recently witness to a spectacular reminder of just how vital they can be in the testimony of university presidents in late 2023 about anti-Semitism on their campuses. Speaking without proper thought about objectives and audience, two of the three witnesses found themselves out on the street immediately thereafter, rather summarily dismissed from their high-in-the-ivory-tower jobs, for supposedly showing too little concern for anti-Jewish hate speech on campus.
Clearly, what doomed them was less the specific content of their statements than a misapprehension of their goals or objectives with the various audiences they were addressing. They simply failed to think carefully about what they were trying to accomplish and with whom, who was listening, and what outcome they wanted for that particular audience. The price for their obtuseness, perhaps more exacting in these fraught political times, was the forfeit of their jobs, not to mention their reputations.
College presidents might be forgiven for failing to appreciate rhetorical concerns in this way. Their training is usually as scholars, after all, not public speakers. What was all the more striking in this sorry episode, however, was that they had apparently been prepared to testify by lawyers from a prestigious law firm. This had the ring of truth because they sounded as if they’d been prepared to be deposed. Deposition testimony, as the context usually requires, is mostly defensive and narrowly focused, rhetoric that is short on specific facts or definitive statements where that might negatively affect a party within the confines of a particular case. Vagueness is often prized, conditional answers highly valued. Indeed, novice witnesses are often surprised, not to mention relieved, that the objective in their depositions is so confined that they need not score points with their answers, but only focus on not saying something harmful or that could be used against them.
These university presidents seemed to have had exactly this mindset, thinking about how their specific words might be deemed “admissions” of something or somehow held against them. They never considered, or were never shown, how that rhetorical approach itself was ill-suited to the circumstances and could lead to their undoing, as it promptly did. A fine example of how rhetoric can, for the unwary, doom even the best-intentioned speech.
Even if merely speculation, the conclusion reached about the provenance of the testimony is consistent with a sad truth about contemporary litigation and litigators. It and they lack an understanding of good rhetoric. Even if they had no professor of rhetoric to tell them about it, lawyers used to appreciate well the demand for rhetorical thinking, carefully tailored for each individual matter. Especially litigators. Let the corporate lawyers always start from their forms or templates, marking up tried-and-true boilerplate recitations and formulaic phraseology as necessary to serve the needs of a new transaction. Transactions really don’t vary so much matter to matter, as the objectives are roughly the same and a buyer and a seller are similarly situated and motivated. But handling lawsuits, threatened or actual, is a different kettle of fish altogether.
The truth is that every dispute is its own problem, different from all others, often in critical respects, especially in terms of what the parties’ dispute is about and how it might be resolved. In a certain sense, this was the essential insight of the common law. From the days of the earliest common-law practice, individual circumstances made all the difference. It was presumed that no two cases were exactly alike, no two disputes the same in their origins, parties, or substance. The very essence of legal persuasion concerned which of the many other prior cases decided over decades or even centuries could be made to seem most like the current dispute. The whole basis of the common law’s analogic thinking—or, if you will, the application of relevant distinctions and the ignoring of “distinctions without a difference”—was that there were always distinctions in the key elements of a case, just those that mattered and those that didn’t. Rhetorical skill in this regard made all the difference.
No longer. Indeed, contemporary litigators seem to have lost track of this essential character of their profession, turning their disputes into almost a rote exercise, a painting by numbers. A new case gets filed and there is a standard menu of possible options litigators are taught to consider, chosen usually for reasons of what’s usually done rather than a clear identification of objectives in a particular case and any thematic development for the expected audience. So too, in that long, exhausting, but mostly conclusive period we call discovery. Nothing is developed rhetorically; it’s all case management. Issue a litigation hold, check. Confidentiality agreement, check. Electronically stored information (ESI) agreement, check. Collect your documents. Do your written disclosures. Prepare your written discovery and get it out the door. Your preliminary list is complete. Then the depositions. Round up the usual suspects.
All these activities are necessary, of course. But to do them without a proper consideration of objectives and audience is backward, even foolhardy. It risks not taking real account of either the specific case you are working on or the full problem posed by your needing to succeed. It may be a result of the character of modern litigation itself, especially in discovery, where the time demands can be overwhelming and success is often no longer measured by whom or to what extent you may persuade. And so one easily falls into a customary pattern with little concern for objective, other than that of moving forward to an inevitable settlement. Do what you always do, and nothing else or more.
There are really only two outcomes many litigators have in mind: summary judgment or settlement. But the former is “often requested, seldom granted, when granted reversed,” and not regularly a legitimate option in the case, more often a chest-thumping threat than a tool with any real teeth in it. The latter is the more likely and expected outcome. It is driven less by the needs of forensic rhetoric, of actually persuading someone, and is more a matter of something more routine and stylized. Cases are resolved not so much through their merits, and litigation becomes the mindless application of standard techniques regularly employed.
The danger is palpable. There is always a risk that one loses a clear sense of what one is doing, as may have been the case of those college presidents or those who prepared them. In lawsuits themselves, the result can be enormous inefficiency and wasted effort. Nothing, or little, is really accomplished, no advantage is gained, while the client pays handsomely until a settlement is reached. Worse, something may go wrong in this litigation pas de deux and up comes that largely unexpected trial where rhetoric makes all the difference. It can turn out to be a disaster of monumental proportions where what has gone before is largely useless because of a want of good rhetorical thinking, and one is left without the means subsequently to persuade. Settlements at this juncture are necessarily more costly and disproportionate, and just possibly may not be had at all.
Good litigating should never be ritualistic and should in particular, ahead of anything else, attend to rhetorical considerations, the demands of forensic rhetoric, what’s necessary to persuade. At the threshold, this requires a focus on what problem the case presents. Why is there a dispute, and what kind of dispute is it? In the case of the university presidents, this is the problem posed by the subject matter of the hearing and what the congressional committee might, however motivated, be looking to take away. In a lawsuit, it is critical. Without understanding the underlying problem, there is no means to find a fitting solution. The latter must be tailored to the former and, because the problem is never the same from case to case, cannot fit within any standard form.
Furthermore, what is that expected solution, and before whom, within reasonable terms? In effect, what’s the objective of the steps you take thereafter to address your audience? “What are you trying to accomplish?” should inform every decision, large and small, in any situation, but particularly in a lawsuit. What means you will use depends on what this end is, not the other way around. A simple way of doing this is to think forward and consider what specific form the eventual resolution is most likely to take and before whom—your adversary in settlement discussions, the judge in summary judgment, a mediator in mediation or arbitrator in arbitration, or a judge or jury at trial. Every step taken in the handling of the case must take its bearings and its theme from that projected outcome. Think about what you want to say about the case once it is resolved, how you might characterize it generally. Again, in the matter of the congressional testimony, when the presidents left the hearing room, what would they have wanted the takeaway to have been? Surely, it was not what good deposition testimony would have yielded.
This question of the objective should be applied to every day-to-day aspect of the case too. Often there may be a large number of witnesses in a dispute but only a few very simple factual questions to answer. Should you notice all witnesses’ depositions? What’s your objective? What do you expect to accomplish with each witness and with what audience, your adversary, a mediator, a judge, or perhaps a jury? Often, there will be nothing to gain from the deposition from this standpoint. Might there be something to lose in not taking a deposition? Perhaps the prospective deponent might be a witness, but is that a sufficient reason to take a deposition? What more will be discovered than what’s already evident from the often exhaustive ESI record? Perhaps you need to “close her off” or get certain admissions for trial. But the former is often less necessary than a paint-by-numbers approach would suggest, and whatever admissions you can get at the deposition you can probably get at trial too, if you need them at all.
Your goal is to persuade, not manage, and you should never lose sight of the key question, and what is the best means in each individual case to accomplish your objective for the audience you expect. Forget about what’s usually done. The answer may be, should be, something different in every case. Painting by numbers and rounding up the usual suspects ought never suffice or even be allowed to intercede. This will not qualify you to be a professor of rhetoric. But, maybe, you’ll have less need of one.
