Between cases, the average trial lawyer doesn’t have a lot of time for reading Aristotle, Cicero, or Quintilian. Then again, most trial lawyers don’t want to be average.
There’s gold to be mined in those dusty tomes. Studying the 5,000-year-old history of rhetoric will give you a more sophisticated understanding of what you do for a living. Rhetorical strategies have been hotly debated for centuries by thinkers as diverse of origin and epoch as Egyptian pharaohs, early Christian bishops, Adam Smith and John Quincy Adams. You could study the topic forever, but here’s a brief roundup of volumes you may find stimulating.
For a comprehensive review of the history of the art of argument, not to mention some valuable how-to tips, pick up a copy of James C. McCroskey’s An Introduction to Rhetorical Communication. Now in its eighth edition, the book credits ancient Egypt with the distinction of creating the first writing on rhetoric.
In 3000 B.C., Pharaoh Huni wrote an instruction for his son on how to speak effectively. From there, McCroskey leapfrogs millennia to the great Greeks — Socrates, Plato, and Aristotle — who first defined many rhetorical concepts that predominate today.
Phaedrus by Plato (427-327 B.C.) defined rhetoric as the “art of winning the soul by discourse.” He stressed the importance of mastering the subjects on which the advocate speaks, of defining terms and achieving clarity.
Aristotle (384-322 B.C.) went on to create the first organized system of rhetoric, identifying as the three significant parts of an argument: the speaker, the speech and the audience. In Rhetoric, Aristotle introduced the ideas of ethos (the perceived character of the orator), pathos (persuasion by emotion), and logos (proof by logic). Famously, he also created two categories for arguments: (1) inductive, based on a series of examples that are generalized conclusions; and (2) deductive, arguing from the general to the specific in the form of a syllogism or enthymeme.
Although Aristotle’s Rhetoric remains the dominant work on the subject, subsequent thinkers have expanded upon his theories. Cicero (106-43 B.C.) contributed numerous works, including De Inventione (“On Invention”) and De Oratore (“On the Orator”). He considered rhetoric’s arrangement and delivery, urging the orator to place the strongest arguments at the beginning and at the conclusion of the speech and the weakest in the middle.
Cicero divided the argument into seven separate parts: (1) the exordium, an introduction that prepares the listener for what the advocate will present; (2) the insinuation, the creation of a receptive environment for the argument; (3) the narrative, a statement of the facts; (4) the partition, a clarification of the arguments; (5) the confirmation, a statement of the proofs; (6) the refutation of the opponent’s argument; and (7) the peroration, or conclusion.
Quintilian (40-95 A.D.) is known for his Instituto Oratoria (“Institutes of Oratory”). He defined rhetoric as the “science of speaking well.” Much of his advice is followed today. Consider his suggestion that the orator should state at the beginning what will be proven and then work logically to the conclusion. He urged the orator to focus on the nature of the case and the questions at issue, and then to select which points to defend or refute.
Quintilian also recommended taking into account the temper of the judge (still a good idea) and integrating proofs with logic and emotion. He concurred with Demosthenes who, when asked the three most important things about oratory, responded: “Delivery, delivery and delivery.”
Christian literature during the first centuries made lasting contributions. Melito, Bishop of Sardis (circa 165 A.D.), and Clement of Alexandria (circa 200 A.D.) were proponents of refuting charges against their new religion through homily (from the Greek word meaning “conversation”). These homilies developed into oral interpretations of scripture for Jewish or Christian congregations and instructed audiences how to practice texts in daily life.
Augustine also contributed to the theory of rhetoric in De Doctrina Christiana, which emphasized brevity, clarity and eloquence and played a significant role in the development of rhetoric during medieval times. (See George Alexander Kennedy’s Classical Rhetoric and its Christian and Secular Tradition from Ancient to Modern Times, 1980.)
The 18th century proved a fertile age for rhetoric, one in which thinkers developed theories about technique, human passions, analysis of the audience, humor, and the vividness of language. Hugh Blair (1718-1800), author of Lectures on Rhetoric and Belles Lettres, reviewed rhetoric in different environments, including the court and the pulpit, focusing on the manner of delivery, aesthetic qualities, and good taste. Also of the 18th century, Adam Smith in Edinburgh and John Quincy Adams at Harvard held academic posts as rhetoricians. Smith’s own Lectures on Rhetoric and Belles Lettres focused on the elements of style, the organization of delivery, and the importance of limiting the amount of information conveyed. He suggested, for example, addressing only three points in argument and discussed the “magic” of the number of three.
In more recent years, social psychologists have contributed to the mix. Such thinkers ponder how people make decisions and how their attitudes and beliefs can be changed.
Concepts such as primacy, frequency, recency, cognitive attitudes, and nonverbal cues have become important to the rhetorician. Writers like Loretta A. Malandro (Say it Right the First Time) and Donald E. Vinson (Jury Persuasion: Psychological Strategies and Trial Techniques) have devoted considerable attention to the explanation of the decision-making process of juries. The newest edition of McCroskey’s book includes a chapter on culture and diversity, which raise concerns for orators.
Surely, the nascent 21st century will see additional contributions. The value of understanding the possibilities and limitations of rhetoric will continue as long as lawyers walk the earth. If you count yourself as a member of that profession, you may well want to invest some time in studying the evolution of your craft.