In this episode of “The Trial Lawyer’s Handbook,”
litigation attorney Dan Small explores the
importance of rhetoric in courtroom communication. Although
rhetoric has been less studied in recent times, it has enabled
speakers to enhance the power and persuasiveness of their words
since the ancient Greeks. Mr. Small discusses why key devices such
as lists, anaphora and rhetorical questions remain vital methods
for trial lawyers to effectively present evidence clearly and
persuasively.
Listen to more episodes of The Trial Lawyer’s
Handbook here.
Mr. Small is also the author of the new American Bar Association
(ABA) book Lessons Learned from a Life on Trial: Landmark
Cases from a Veteran Litigator and what They Can Teach Trial
Lawyers.
Podcast Transcript
Dan Small: For centuries, people have been
aware that different methods of expression make the speaker’s
words more powerful, more informative, or more persuasive. The
ancient Greeks called it the art of rhetoric, and it was considered
an important field of study, well into the 19th century. In the
modern world, few people study rhetoric or consciously apply labels
to their forms of speech. But rhetorical devices still exist. They
remain effective, and many are commonly used in the courtroom. Here
are three basic ones: lists, anaphora and rhetorical questions.
First: lists, a simple and effective way to
communicate information is to present it in the form of a list. We
use lists every day in our lives to organize information, things to
do, shopping lists and make it easier to understand and remember.
The courtroom is no different. Use verbal and written lists to
organize and communicate your points. Almost any kind of argument
can be turned into a list. There are seven key pieces of evidence
found in the victim’s bedroom:
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- First, the defendant left a fingerprint on the door.
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- Second, he left several hairs on the pillow.
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- Third and so forth and so forth.
Or how about there are four things that the government or the
plaintiff must prove. First, second, third and so on.
Lists can also be turned into visual aids and should be turned
into visual aids. If you want the jury to focus on seven pieces of
evidence, make a chart listing them one through seven, and then
show it to the jury and use it with your witnesses or in your
argument. No one will ever complain that you were too
organized.
Next is anaphora. Anaphora is a rhetorical
device that consists of repeating one or more words at the
beginning of a series of related sentences or clauses. Countless
examples can be found in law, literature and politics. Here are
three famous ones:
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- Winston Churchill addressing his countrymen during
England’s dark days of World War Two. We shall defend our
island, whatever the cost may be. We shall fight on the beaches. We
shall fight on the land and grounds. We shall fight in the fields
and in the streets. We shall fight in the hills. We shall never
surrender.
- Winston Churchill addressing his countrymen during
-
- Or Abraham Lincoln in his wonderful Gettysburg Address. But in
the larger sense, we cannot dedicate, we cannot consecrate, we
cannot hollow this ground.
- Or Abraham Lincoln in his wonderful Gettysburg Address. But in
-
- And of course, Martin Luther King in his famous I Have a Dream
speech. I have a dream that one day this nation will rise up and
live out the true meaning of its creed. We hold these truths to be
self-evident, that all men are created equal. I have a dream that
one day on the red hills of Georgia, the sons of former slaves and
the sons of former slave owners will be able to sit down together
at the table of brotherhood. I have a dream that my four little
children will one day live in a nation where they will not be
judged by the color of their skin, but by the content of their
character.
- And of course, Martin Luther King in his famous I Have a Dream
Anaphora sounds like a strange word, but yet it’s one of the
most powerful and effective courtroom techniques. It adds emphasis
and order and often an element of drama. Moreover, it’s
seductive. It draws the listener in. It works in argument.
“She did not mention that fact to the officer who responded
to the scene.”
“She did not mention it to the officer who interviewed her
at the station an hour later.”
“She did not mention it to anyone, anywhere at any time
over the next three months.”
“And in cross-examination, did you mention that fact to the
officer who responded to the scene?”
“No, you did not.”
“Did you mention that fact to the officer who interviewed
you at the station?”
“No, you did not.”
“Did you mention that fact to anyone, anywhere at any time
over the next three months?”
Next, rhetorical questions. Rhetorical
questions are useful devices in both openings and closings. In
fact, they’re used so commonly that it’s rare to hear an
opening or closing without at least one. In openings, they can set
up issues, pique interest, or disguise argument.
As you listen to the evidence ask yourself: why would someone
knowingly sign a false document if he had nothing to gain or
nothing to hide?
In closing rhetorical questions add focus and interest.
“Jane Smith says she spent thousands of dollars to fix the
damage. But where are the bills? Where are the receipts? Where are
the canceled checks? Where are the credit card
statements?”
Rhetorical questions are not, however, foolproof. Don’t ask
a question if you’re just pitching a softball to your opponent
to hit it out of the park with a better answer than you have. And
don’t ask a question that invites a juror to supply a harmful
answer.
“Ladies and gentlemen of the jury, who would believe such a
story?”
And Juror six is sitting there silently thinking, “Well, I
would. It sounded right to me. Does he think I’m an
idiot?”
One of the great challenges for trial lawyers is to connect
separate pieces of evidence in a way that is both clear and
persuasive. These rhetorical devices are among the most important
tools for meeting that challenge.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
