Ok, so this is what I am learning is called a deep dive into rhetoric as an aid to advocacy. Once again, thanks to the inestimable Claire Bradley (@Claire_Bradley0) for the content.
The caution I add is that – back in the day – law was entertainment. You watch Kramer vs Kramer (though actually the War of the Roses is a whole lot funnier) – your Roman public went down to the Forum to see Cicero tear someone a new one. So emotional appeals had a big part to play. This persisted right up until the days of mass entertainment: in 1894 Marshall Hall famously said to a jury “Look at her, gentlemen… God never gave her a chance – won’t you?” Try that today and 12 people will look at you with a codfish-like expression and internally say, “No. You [insert dismissive insult of choice]”, the Judge will groan (probably audibly) and your opponent will smile cheerfully, practically certain of the conviction. As we do not now say, tempora mutantur, nos et mutamur in illis (click on the link and look it up).
This is truly useful stuff. You will be taught quite a lot about techniques of advocacy and learn even more from experience, but learning about the structure of advocacy is well worthwhile. It helps you organise your thoughts and to determine the best way in which your particular cat might be skinned. It lets you measure your own thoughts, and perhaps progress, against a tested and successful way of doing the job. Claire has helpfully referred to the BPTC course and advocacy exercises throughout.
Because this topic has been treated at length I have, like Caesar, est omnis divisa in partes tres [that’s enough latin tags you pompous arse – Beheshteh] and, this being the second instalment of our series on rhetoric, the final instalment will be published next week.
Basic principles
The classical legal rhetoricians identify the purpose, approach and linguistic or rhetorical tools you can adopt in relation to the different parts of your skeleton argument or trial. We start by identifying 3 basic principles that underpin the system of classical legal rhetoric, namely:
1) “The perfect orator is a good person speaking well”. The classical rhetoricians believed that if you wanted to be a persuasive advocate it was essential for the advocate to be personally and professionally credible; trusted by the court; and able to use logical arguments and emotional arguments well. If you were not trusted by the court then you wouldn’t be persuasive no matter what clever linguistic tricks you used.
2) They divided a rhetorical speech or argument into five elements
- What your arguments are.
- How you structure your argument (introduction/opening speech, statement of facts/legal arguments and evidence in support/refutation/conclusion
- Style – how you say it, and the linguistic and rhetorical tricks you can use.
- Memory – how you remember your speech and build up a bank of useful phrases you can trot out when needed.
- Delivery
3) They emphasised that it’s important to vary your language depending on what you are looking to do. If the advocate is looking to instruct either the judge or jury the language should be plain and simple. If the advocate is looking to please them then they should aim to use the odd elegant turn of phrase. And if the advocate is looking to move them then they should use all the rhetorical tricks at their disposal.
Having established these basic principles, we can now look at the purpose of an introduction according to the rhetoricians, whether in a skeleton argument or an opening speech, to help us understand what we need to do to achieve our aims when drafting our own.
Introduction
The introduction of a speech usually announces the subject, legal issues and purpose of the case. However, a fundamental objective of the introduction (whether written or spoken) is to establish the personal and professional credibility of the advocate to the court, which the classical rhetoricians called ethos. This needs to be done first: if it isn’t the advocate won’t be persuasive.
Quintilian identified the introduction as “that part of the speech addressed to the judge before he has begun to consider the actual case[1]. The purpose is to “prepare our audience in such a way that they will be disposed to lend a ready ear to the rest of our speech.”[2] This is accomplished by including “the points which seem most likely to serve our purpose” and by rebutting or lessening the force of points that damage our case.”[3]
Cicero states that the purpose of the introduction is to secure “an intelligent and an attentive hearing, by starting with the facts themselves”[4]. The purpose of the introduction “is to enable us to have hearers who are attentive, receptive and well-disposed.”[5]
Thus, the purpose of the introduction is to make your audience receptive and emotionally engaged with the case and hopefully get the judge onside. The rhetoricians suggest you write or speak as an emotionally invested advocate, using a temperate or low-key delivery, as your primary aim is to establish your credibility and give the court a good idea of what the case is about. As the aim is to instruct, you should use plain and simple language generally. However, another aim is to please the court, so chucking in the odd elegant turn of phrase or demonstrating your clear grasp of the issues in the case will hopefully help in establishing your personal and professional credibility.
Each introduction is individual and directly relevant to the facts – so avoid recycling them.
What is Ethos?
Ethos is your personal and professional credibility. Basically, if you were perceived as being a good person, fearlessly defending your client, honest and fair in your dealings with the court and your opponent then the judge would find you persuasive. People like Aristotle and Quintilian viewed being honourable and a good person as fundamentally important:
“The strongest argument in support of a speaker is that he is a good man”[6].
Quintilian argued that “Although an advocate may be modest and say little about himself, yet if he is believed to be a good man, this consideration will exercise the strongest influence at every point of the case. The perfect orator is a good man speaking well”[7].
You don’t have to be of good character, but you do have to be able to project the impression of good character to the court. Aristotle warned advocates against inadvertently betraying their manipulative intentions:
“Present yourself from the outset in a distinctive light, so that the audience may regard you as a person of this sort, your opponent as a person of another sort; only do not betray your design – it is easy to give the right impression”[8].
And: “The speaker must not merely see to it that his argument shall be convincing and persuasive, but he must give the right impression of himself…for in conducing to persuasion it is highly important that the speaker should evince a certain character, and the judge should conceive the advocate to be disposed towards the judge in a certain way.”[9]
Aristotle identified 3 things that project a favourable ethos, and these points are worth bearing in mind when the court is getting its first impression of you as an advocate, whether that is through your opening speech, or in the introduction to your skeleton argument.
- Intelligence
- Good Character (particularly honesty and fairness)
- Goodwill[10]
Cicero listed[11] the following virtues as giving a good impression of an advocate:
- A mild tone
- A modest demeanour
- Gentle language
- “It is very helpful to display the tokens of good nature, kindness, calmness, loyalty and a disposition that is pleasing and not grasping or covetous, and all the qualities belonging to men who are upright and unassuming.”
- “Advocates should develop the faculty of seeming to be dealing reluctantly and under compulsion with something that in reality you are really anxious to prove.”
- If your delivery is unruffled and eloquent of good nature, the advocate is made to appear upright, well bred and virtuous” (and therefore persuasive!)
Quintilian believed:
- an advocates credibility depending on his perceived motives for taking a case “It is desirable that he should be believed to have undertaken the case from moral considerations”[12] (rather than financial considerations)
- An advocate must adopt a confident manner, and should always speak as if he thought his case was admirable[13].
- Advocates should avoid coming across as
- abusive to people, particularly the judge, their colleagues, clients and witnesses.
- Malicious or vindictive
- proud
- arrogant[14]
- excessively self assured/too confident “As a rule a judge dislikes self confidence in a pleader, and conscious of his rights tacitly demands the respectful deference of the orator”[15]
- slanderous towards any individual or body of men[16].
Aristotle noted that your ability to use emotional arguments, particularly in your conclusion, depended on how well you had convinced the judge of your honourable intentions. “You must use each and all of these emotional arguments with a view to making your audience receptive, and give an impression of yourself as a good and just person, for good character always commands more attention.”[17]
Ethos and social media
Before social media was invented, the only impression the judge or the jury had of you was when they saw you in court. However, nowadays people can get an impression of you from your posts on social media, and so can your colleagues at the Bar. In order to not damage your professional and personal credibility whilst online, it is wise to avoid giving the impression that you are often
- abusive to other people
- Malicious or ill-intentioned
- arrogant
- excessively self assured/too confident
- slanderous
The general etiquette across the legal profession is that whilst you may disagree with your opponent you “play the ball, not the man” which means you don’t respond to a disagreement on an issue by making rude, personal remarks. If you wouldn’t make that remark to your opponent in court, then don’t make it online either.
Linking the concept of ethos with the BPTC
The idea that advocates have to be personally and professionally credible in order to be persuasive is a fundamental principle of advocacy that goes back 2500 years. It was true then and it’s true now.
The Devil’s Advocate [18] is probably the book that states this most explicitly. The author, Iain Morley QC (to whom we are grateful for his permission to use these quotes), places substantial emphasis on the importance of honour and integrity in making an advocate irresistibly persuasive and makes clear that “without trust, you won’t be persuasive.”[19] Keith Evans[20] takes the same view ”The prosecutor who is unquestionably nice and scrupulously fair is, far more often than not, lethally effective.”[21] As Steven Lubet[22] succinctly says “Integrity inspires trust, and in trial work, trust leads to success”[23].
The advocacy books on the BPTC make these points again and again:
“Make sure you come across as absolutely fair (rule 48) and “Demonstrate your competence to your judge as early as possible. (rule 51)”[24] (Common sense rules of advocacy)
“Opening statements can be significant because of the other goals you can achieve, for example, an opening statement is your chance to incline a judge or juror to an attitude that justice is on your client’s side, to provide a framework that meaning to your story and legal arguments, and to establish trust and rapport.” [25] (Trial advocacy in a nutshell)
“The beginning of your opening statement is your first opportunity to speak directly with the jury. It is your first chance to impress them with the merits of your case and your abilities as an advocate. First impressions are usually lasting impressions. In a short period of time you should be able to achieve several purposes:
- a) Present a one sentence capsule of the case.
- b) Explain the purpose of the opening statement (to identify the issues for the court)
- c) Explain how a trial is conducted, if the judge hasn’t already done so.
- d) Demonstrate your abilities, confidence and integrity through your delivery and demeanour.”[26]
(Fundamentals of trial techniques)
The introduction and emotion
Cicero thought that emotion was especially important in the introduction; “it is essential that the introduction should have the power of stirring the minds of the audience, because it has a great effect in persuading and arousing emotion”.[27]
“Arousing the judges emotions is easier in the introduction, because the audience is most attentive when it has the whole of the speech to look forward to, and also it is more receptive at the start because the advocates position is usually clearer at the beginning than in the middle of the argument.”[28]
Quintilian thought that the introduction:
– “exercised a valuable influence in winning the judge to regard us with favour”[29]
He urged advocates to use a temperate or low-key delivery in their introduction.
“In our opening any preliminary appeal to the compassion of the judge must be made sparingly and with restraint.”[30]
If you are dealing with an impatient judge Quintilian suggested that advocates should
“create the impression that they shall not keep the judge long and intend to stick closely to the point…the mere fact of such attention makes the judge ready to receive instruction from the advocate, but they shall contribute still more to this favourable impression if they give a brief and lucid summary of the case which they have to try[31].
[1] 2 Quintilian, Institutio Oratoria at 7
[2] 2 Quintilian, Institutio Oratoria at 9
[3] 2 Quintilian, Institutio Oratoria at 21
[4] 4 Cicero, De Partitiones Oratoria at 335 (H Rackham trans. 1921)
[5] Rhetorica ad Herennium at 13
[6] 2 Quintilian, Institutio Oratoria at 303.
[7] 2 Quintilian, Institutio Oratoria at 9
[8] Aristotle, Rhetoric at 231
[9] Aristotle, Rhetoric at 91
[10] Aristotle, Rhetoric at 92
[11] 3 Cicero, De Oratore at 327-329
[12] 2 Quintilian, Institutio Oratoria at 9
[13] 2 Quintilian, Institutio Oratoria at 343
[14] 2 Quintilian, Institutio Oratoria at 11
[15] 2 Quintilian, Institutio Oratoria at 37
[16] 2 Quintilian, Institutio Oratoria at 11
[17] Aristotle, Rhetoric at 224
[18] Iain Morley QC, The Devils Advocate (4th edn (kindle), Sweet and Maxwell, 2014)
[19] Iain Morley QC, The Devils Advocate (4th edn (kindle), Sweet and Maxwell, 2014) location 692
[20] Keith Evans, Advocacy in Court – a beginners guide (OUP, 2010)
[21] Keith Evans, Advocacy in Court – a beginners guide (OUP, 2010) p67
[22] Steven Lubet and JC Lore, Modern Trial Advocacy Analysis and Practice (4th edn, National Institute for Trial Advocacy, 2016)
[23] Steven Lubet and JC Lore, Modern Trial Advocacy Analysis and Practice (4th edn, National Institute for Trial Advocacy, 2016) p6
[24] Keith Evans, Common sense rules of advocacy for lawyers (The Capitol.net, 2004)
[25] Paul Bergman, Trial Advocacy in a nutshell (4th edn, Thomson West Publishing, 1997) p107
[26] Thomas Mauet, Fundamentals of Trial Techniques (2nd edn, Little, Brown and Co, 1988) p54
[27] 3 Cicero, De Oratore at 435
[28] 3 Cicero, De Oratore at 443
[29] 2 Quintilian, Institutio Oratoria at 19
[30] 2 Quintilian, Institutio Oratoria at 21
[31] 2 Quintilian, Institutio Oratoria at 25