In law school, I was introduced to the adage of three courtroom approaches: “When the law is on your side, speak to the judge. When the facts are on your side, speak to the jury. When neither is on your side, pound your shoe on the podium and shout.”
Regardless of the origin of this saying, I recently was reminded of it while re-reading Aristotle’s The Art of Rhetoric (Hugh Lawson-Tancred ed. & trans. Penguin Classics 2004). Lawson-Tancred’s introduction summarizes Aristotle’s analysis that there are three forms of proof in rhetoric: those achieved by argument, those achieved by character, and those achieved by emotion. Id. at 16–17. The parallel is obvious but deserves further exploration.
Rhetoric is the art of written or spoken communication seeking to persuade. Frequently, we read accusations negatively, labeling the speaker as one spouting rhetoric, but such accusations are often misguided. What the speaker often proclaims is the target presenting false arguments. But that is sophistry, not rhetoric. Others use rhetoric as a denouncement of an appeal to emotion. Emotion indeed is a part of rhetoric, but an appeal to emotion is pathos, and true rhetoric involves the trifecta of logos, pathos, and ethos—logic, emotion, and credibility.
Attorneys use rhetoric, albeit only sometimes intentionally, so the historical context is enlightening. In the days of Aristotle (384–322 BC), the Athenian justice system had several remarkable features. For one, the state had no monopoly on prosecution. Any citizen could complain about another. (This, unfortunately, resulted in a form of politicizing as the juries became quick to rule against those Athenians from wealthier neighborhoods and backgrounds.) Id. at 11.
Another feature was the structural size. The ultimate deciding body within the judicial system was known as the Assembly. The Assembly contained about 6,000 people. The Assembly typically had a full agenda, so its members focused on making quick decisions. A solution was to create the Council of Five Hundred to serve as the deliberative body that would listen to arguments and make a recommendation to the Assembly. In this separation of duties, the Council determined facts (i.e., jury) and the Assembly applied the law (i.e., judge).
The Council heard two types of matters: government proposals and legal complaints. Government proposals involved one or more citizens seeking to persuade the Council to support a government initiative. Legal complaints could be described in modern terminology as both civil and criminal. The task was to argue persuasively to the Council of Five Hundred, regardless of whether the individual was the protagonist or antagonist. Like the practice of law today, a pathway to success is crystal clear communication—know your story and tell it well.
Indeed, Aristotle sees rhetoric as an elevated talent. He concludes that the form of rhetoric needed to be successful in front of the Council is a techne. A techne is defined as the domain of practical wisdom and craft knowledge, for Aristotle analogous to what an episteme is to theoretical reasoning. Aristotle also sets forth a third form, phronesis, which is ethical knowledge. A deeper dive into these can be found in his Nicomachean Ethics.
The takeaway is that rhetoric, the art of oral persuasion, is worthy of perfecting. Perfecting oral persuasion requires knowledge of the craft of persuasion and is built upon the proper integration of argument, character, and emotional appeal.
Aristotle argues that there are two necessary components and two optional ones. Id. at 246. They are, in order of appearance:
Accordingly, the ending should not be an oration, but a compelling peroration and ideally asyndetic—a statement without conjunctions, such as “I came, I saw, I conquered.” The text itself demonstrates an asyndetic ending to the epilogue with, “I have spoken, you have heard, you have the facts, judge.” Id. at 261.
Some readers are litigators; others are not. But all of us find ourselves needing to communicate persuasively, whether to a judge, a client, or a family member. Examine how you go about doing so, and perhaps you will increase your success not by pounding the table and yelling, but by following a carefully crafted format, such as Aristotle’s.
I wrote, you read, now do.
