how does modern-day courtroom Rhetoric compare to Ancient Rhetoric?

15Pete

As a prospective legal student and current Philosophy student, I am very interested in the use of rhetoric by barristers in persuading a judge/jury in a certain way. I am aware that a certain degree of rhetorical technique is taught to law students; but am particularly interested in how rhetoric has changed and evolved over the centuries.

The question I am asking is, is rhetoric an important tool for courtroom lawyers in this day and age? Is rhetoric as useful as it was in ancient Greek times? Or have modern sensibilities and education made people less prone to being swayed by rhetorical techniques, and therefore, is forensic rhetoric a dying art? I am particularly fascinated with the differences and similarities between what is contained in Aristotle's work 'On Rhetoric', and what is taught in modern law schools. This may even potentially become a dissertation topic of mine.

Any advice from people who have studied rhetoric and have any experience with it's use in a courtroom, would be very welcome.

Manach

I've no experience in actual court, only the practice moot court. But I'm familiar with the Greek mode of oratory, as part of another non-law course - where the various speaches of the forensic orators, such of Lycias, were analysised.
Context is key. In the juristic assembly of Athens, there could have been tens of hundreds of jurists, no judges nor lawyers and only a vague notion of legal precedents. In Irish courts, judge and a limited number of jurists plus fairly strict rules on what to say and how to say it, as per various self-incrimination and bring up past behaviour rules. Flowery rhetoric alone would be quickly sidelined.

However, one element that is of use is that of emotional appeal. The Greeks were masters of that, to either have the jurists identfiy with the victim/plaintiff at a basic human level and to tie that into their common social norms and experiences (nomus I think in the Greek). That I found useful to weave into the bare-bones of the law to appeal to the moot judge. How useful in actual practice, other posters might have other opinions.

Bepolite

S0crates wrote: »

As a prospective legal student and current Philosophy student, I am very interested in the use of rhetoric by barristers in persuading a judge/jury in a certain way. I am aware that a certain degree of rhetorical technique is taught to law students; but am particularly interested in how rhetoric has changed and evolved over the centuries.

Clinical/Court room skills aren't (generally) taught until you enter the professional stage. You might get a bit of mooting in, and some explanation is given as to the reasons what certain phrases are used, but it doesn't rise to the level of rhetoric. In fact an excellent way to get a moot court judge's eyes to glaze over is to start off on a rhetorical point. Debating, on the other hand...

S0crates wrote: »

The question I am asking is, is rhetoric an important tool for courtroom lawyers in this day and age? Is rhetoric as useful as it was in ancient Greek times? Or have modern sensibilities and education made people less prone to being swayed by rhetorical techniques, and therefore, is forensic rhetoric a dying art? I am particularly fascinated with the differences and similarities between what is contained in Aristotle's work 'On Rhetoric', and what is taught in modern law schools. This may even potentially become a dissertation topic of mine.

Courtroom I'll leave to the the more experienced, but frankly no one has ever brought a tear to my eye. I've seen some 'aspirational' points put forward in the CCA but they were hardly well crafted pieces of oratory. Have a listen to Roe v Wade and see what you think, just a random example but again not exactly Churchillian wit.

As for it being taught in Law Schools, I'm not an expert on institutions in Ireland, but the average law student, in my opinion, is about about as able to string a sentence together as any other.

S0crates wrote: »

Any advice from people who have studied rhetoric and have any experience with it's use in a courtroom, would be very welcome.

I'd look at the proportion of Law students in the debating finals and turn up to the courts and sit in for a bit. I'm not sure you're going to be particularly impressed, but then it's not really the point tbh.

jawn

Bepolite wrote: »

In fact an excellent way to get a moot court judge's eyes to glaze over is to start off on a rhetorical point. Debating, on the other hand...

As an avid mooter, this interests me. Might you give some examples of 'rhetorical points' for use in moots, and perhaps link to some literature providing for same?

Cheers!

nuac

Forget about rhetoric in actual court cases.

Just deal with the facts and law, sum up, answer any questions from the judge, and sit down.

Eloquent speeches may impress some, but you have to watch the judge all the time.

If the judge has stopped taking notes and looks fed up, shut up

hullaballoo

This argument actually goes back to ancient (pre-Christian) times. There's a great Robert Harris historical fiction based on Cicero, called "Imperium." Cicero takes a very clean and clear approach to advocacy and sees this as a rhetorical tool. On the other hand, his "arch enemy" is an all-singing, all-dancing, prancing lawyer who uses embellished language, gestures and all the rhetorical tricks in the book.

It depends, to an extent, on what your good at but it goes beyond that. I believe in the efficacy of both and I wouldn't dictate to someone which is best. It depends on the individual and whether one style suits them over another. I don't think I need to say which I prefer.

I find it useful to sit in on cases and pick up on the rhetorical tools other advocates use. If I like it, I'll try it out. It may or may not work.

Book spoiler.

Cicero wins.

johnnyskeleton

In summary, most judges/juries prefer plain talkin'

Bepolite

jawn wrote: »

As an avid mooter, this interests me. Might you give some examples of 'rhetorical points' for use in moots, and perhaps link to some literature providing for same?

Cheers!

Look at the previous DCU National Competitions and this years competition - (at least) two years of policy based arguments dominating in the early rounds due to the massive areas they have covered. This year O'Brien.

Pro Hoc Vice

A good lawyer knows the law a great lawyer knows the judge. An old song says "know when to hold them, know when to fold them."

I have seen great lawyers say nothing other thana repeated "you saw nothing of my client x" and the same lawyer give a beautifully crafted speech to Judge or Jury, when needed.

I remember a case where the accused had pleaded guilty to a large enough drugs section 15, the matter was before the Circuit Court on appeal, 6 months bellow, the judge was going to suspend, when counsel knowing his judge said "A Judge you will do better than that" the probation of offenders Act was applied.

nuac

johnnyskeleton wrote: »

In summary, most judges/juries prefer plain talkin'

Indeed. I recall Pat Lindsay defending an indictment ( before a Judge and Jury )

He was a great orator, and well read in the classics.

He just said "You have heard all the eviidence. My client is a decent man. Do the best you can for him" ( or words to that effect )

Acquittal.

Yes there is plenty of rhetoric in the classics, and I enjoyed reading latin and Greek.

I could declaim in Ciceronion style if I thought it would do a client any good. Never had a case or judge on which to usefully or safely experiment

Pat Mustard

I heard a story about a deceased Senior Counsel called Rex Mackey. He was supposed to have been quite a character.

In examining a witness, he was sometimes known to put them in the box and let them off with a simple "tell your story".

Stylish.

nuac

I remember Mackey. Highly regarded as an advocate

Cody Pomeray

not to derail, but a thread on characters in the legal professions might be a good idea. One of my favourite judges/ barristers (if only for his notoriety) was Melford Stevenson, in the English courts. I used to break up boring case readings by looking up mental judges in the english and Irish courts. But Stevenson always delivered.

He once told an accused

“I must confess I cannot tell whether you are innocent or guilty. I am giving you three years .If you are guilty you have got off lightly, if innocent let this be a lesson to you.”

Back on topic....

Morgan's Constitutional Law claims that there may be a constitutional convention requiring there to be at least one Protestant on the Supreme Court bench. I wonder if we might change that and install a permanent Jesuit instead! Rehtoric is almost universally frowned upon in the Irish courts, and has been for many years, it seems.

Some of the old judgements of the supreme courts, and old CJs seem to have had some time for it maybe, but an increase in litigation and a change in the makeup of the legal professions has changed all that.

Some Irish judges entertain rhetoric, but only where it applies with regard to precedent and consistency, or common sense, but certainly not logic.

234

Cody Pomeray wrote: »

Morgan's Constitutional Law claims that there may be a constitutional convention requiring there to be at least one Protestant on the Supreme Court bench.

I didn't know that Ireland had constitutional conventions. Do you know of any others? Is there case law recognising them?

Cody Pomeray

234 wrote: »

I didn't know that Ireland had constitutional conventions. Do you know of any others? Is there case law recognising them?

I don't know of any case law regarding them, all I know is that Morgan mentions a few, e.g. opposition membership of the public accounts committee is another one.

We have established or expressly abolished many, if not most of the major british conventions in Bunreacht (we formalized cabinet confidentiality, deleted parliament's sovereignty, etc.).

But some may remain unwritten and suspended in the ether, but without modern case law they're purely speculative.

johnnyskeleton

The Mustard wrote: »

I heard a story about a deceased Senior Counsel called Rex Mackey. He was supposed to have been quite a character.

In examining a witness, he was sometimes known to put them in the box and let them off with a simple "tell your story".

Stylish.

That's a trick most commonly used by those who haven't fully read their papers I'm afraid and can often lead to disastrous results.

Not to say that Mackey didn't read his papers of course.

234

Cody Pomeray wrote: »

I don't know of any case law regarding them, all I know is that Morgan mentions a few, e.g. opposition membership of the public accounts committee is another one.

...

But some may remain unwritten and suspended in the ether, but without modern case law they're purely speculative.

I would imagine that without any case law to back them up then what Morgan is suggesting would mean that they are normative at best, very unlikely to be legally enforceable as is the case in the UK.

Cody Pomeray

Yes I would share that opinion. The conventions like a Protestant on the Supreme Court and an opposition TD heading the PAC are unlikely to be justiciable, and neither should they be, in a Republic.

It was clearly the intention of the drafters of the constitution that those British constitutional conventions that we wished to keep, we would formalize, and it appears that they others were to be reduced to 'worthwhile habits'. Morgan's discussion of conventions are interesting, but ought to be mostly irrelevant to the law.

Manach

From what Morgan had said and his comparisons to the UK, it would be a case of having a set of common social understanding so as to build the tradition of a communal shared set of assumptions, which in the end would have aided the accumulation of a shared national identity.

McCongo

234 wrote: »

I would imagine that without any case law to back them up then what Morgan is suggesting would mean that they are normative at best, very unlikely to be legally enforceable as is the case in the UK.

Conventions are not legally enforceable in the UK. They are recognised but disappear when ignored. There has never been an injunction obtained for a threatened breach of a convention of or a declaration that any action was in breach of one and quashed.
For a long time there was a convention that no new hereditary peers would be created. Maggie Thatcher just went ahead and did just that. End of story.

234

McCongo wrote: »

Conventions are not legally enforceable in the UK. They are recognised but disappear when ignored. There has never been an injunction obtained for a threatened breach of a convention of or a declaration that any action was in breach of one and quashed.
For a long time there was a convention that no new hereditary peers would be created. Maggie Thatcher just went ahead and did just that. End of story.

That's not necessarily true, look at AG v Jonathan Cape. While the main decision was based on breach of an equitable duty of confidence where a convention was justification for expansion of Argyll v Argyll, this dictum dealing with the joint responsibility convention is interesting.

It is convenient next to deal with Mr. Comyn's third submission, namely, that the evidence does not prove the existence of a convention as to collective responsibility, or adequately define a sphere of secrecy. I find overwhelming evidence that the doctrine of joint responsibility is generally understood and practised and equally strong evidence that it is on occasion ignored. The general effect of the evidence is that the doctrine is an established feature of the English form of government, and it follows that some matters leading up to a Cabinet decision may be regarded as confidential. Furthermore, I am persuaded that the nature ot the confidence is that spoken for by the Attorney-General, namely, that since the confidence is imposed to enable the efficient conduct of the Queen's business, the confidence is owed to the Queen and cannot be released by the members of Cabinet themselves. I have been told that a resigning Minister who wishes to make a personal statement in the House, and to disclose matters which are confidential under the doctrine obtains the consent of the Queen for this purpose. Such consent is obtained through the Prime Minister. I have not been told what happened when the Cabinet disclosed divided opinions during the European Economic Community referendum. But even if there was here a breach of confidence (which I doubt) this is no ground for denying the existence of the general rule. I cannot accept the suggestion that a Minister owes no duty of confidence in respect of his own views expressed in Cabinet. It would only need one or two Ministers to describe their own views to enable experienced observers to identify the views of the others.

In my opinion this doesn't follow from the earlier expansion of Argyll v Argll, the court seems to be moving straight from concluding that there is a constitutional convention to legally enforcing it without doing it through the medium of any established legal doctrine.