by Brian Porto , Esq .
Rhetoric Revisited : A Second Look At How Rhetorical Techniques Improve Writing
Judges as Rhetoricians
In a previous article , I used examples from the opinions of Justices Oliver Wendell Holmes , Jr . and Robert Jackson to illustrate how rhetorical techniques can enhance the persuasiveness of legal writing . 1 In this article , I will use examples from the less pithy , but equally instructive prose of Hugo Black and William Brennan for the same purpose . Indeed , the opinions of Justices Black and Brennan may be especially instructive , precisely because their relatively unadorned prose aids both comprehension and emulation . Whereas the Holmes and Jackson opinions illustrate the rhetorical concept of “ style ” ( word choices designed to affect the reader ’ s emotions ), the Black and Brennan opinions highlight “ arrangement ,” the rhetorical tool for organizing a written document . Both style and arrangement are keys to improved legal writing .
Rhetoric : A Brief Overview
Rhetoric is the study of persuasion , which derives from Aristotle ’ s premise that “ it is not enough to know what to say – one must know how to say it .” 2 Rhetoric conceives of persuasion as having three modes : “ logos ” ( the appeal to logic or reason ), “ pathos ” ( the appeal to emotion or the heart ), and “ ethos ” ( the appeal to ethics ). 3 Aristotle believed that rhetoric served the cause of justice by facilitating the consideration of opposing viewpoints – leading to the discovery of truth – even if that truth was uncertain . Thus , the Aristotelian view of rhetoric underlies the Anglo-American adversarial system of justice , which explains why rhetorical techniques can make American lawyers more persuasive .
Rhetoric divides a “ discourse ” ( either a speech or a written document ) into five parts : invention , arrangement , style , memory , and delivery . This article will not address invention , which is the discovery of arguments ; neither will it address memory and delivery , which reflect rhetoric ’ s exclusive association with oratory before the invention of printing in the Fifteenth Century . 4 Instead , it will focus on arrangement and style , as reflected in selected opinions of Justices Black and Brennan .
The Greeks and the Romans arranged a legal argument , whether spoken or written , in five parts , which are mirrored in the five parts of the modern appellate brief : ( 1 ) Introduction ; ( 2 ) Statement of the Case ; ( 3 )
Argument Summary ; ( 4 ) Argument ; and ( 5 ) Conclusion . 5 The ancients knew that the components of a discourse should “ hang together ” and that although the ties binding them must be unobtrusive , they must still be clear enough that the audience could identify a transition to a new phase of the discourse .
The ancients also knew that an orderly presentation of facts was crucial to clarity and comprehension . They taught that chronological order would sometimes be the organizing principle , but that , alternatively , the order of presentation could move from the general to the particular or from the more familiar to the less familiar . They emphasized the need for the orator or the writer to paint a metaphorical picture by means of carefully chosen words and understatement instead of hyperbole . These methods achieved what the Greeks called “ enargia ,” or vividness , as evocatively delineated facts implanted themselves in the minds of the audience members .
But persuasion relies on style as much as on arrangement . Once arranged , arguments must be put into words , which is style ’ s job . Style achieves pathos by using word choices to establish an emotional connection between the speaker or writer and the audience . Style is as important to persuasion for American lawyers today as it was for Greek and Roman orators in ancient times . Indeed , modern rhetoricians use the same names the ancients used for the more than two hundred figures of speech they have identified as having been part of public discourse since ancient times . 6 When modern lawyers use figures of speech in their oral and written advocacy , they perpetuate a centuries-old rhetorical tradition and underscore the importance to that tradition of style as a means of persuasion .
Figures of speech can be divided into “ schemes ” and “ tropes .” Schemes include the figures of speech that deviate from the customary order in which words appear . An example of a scheme is : “ Honorable is the soldier who gives his life for his country .” 7 This particular scheme reverses the customary order of words in this sentence , as spoken or written , namely , “ The soldier who gives his life for his country is honorable .” The effect of reordering the words is to make the sentence more dramatic , hence more memorable . Tropes , on the other hand , include the figures of speech that deviate from the customary meanings assigned to particular words . An example of a trope is : “ Brutus is an honorable man ,” which is part of Marc Antony ’ s oration at Caesar ’ s funeral in William Shakespeare ’ s play , “ Julius Caesar .” In this instance , the word “ honorable ” is meant to be understood ironically , not literally , because Brutus helped to kill Caesar ; hence , it asserts that Brutus is not honorable at all in the customary sense of that word . Id .
One familiar scheme is “ parallelism ,” which features similarity of structure in a pair or series of related words , phrases , or clauses . 8 An everyday example of parallelism , which aids comprehension through word economy and with a pleasing cadence , is : “ Attorney Smith spent Thursday speaking to a client , writing a memo , and attending an afternoon seminar .” Another familiar scheme is “ antithesis ,” which juxtaposes contrasting ideas close together in the same sentence , often in a parallel structure . 9 The late astronaut Neil Armstrong , the first person to walk on the moon , demonstrated antithesis during that historic walk , when he said : “ That ’ s one small step for man , one giant leap for mankind .” A third familiar scheme is “ alliteration ,” which repeats initial or medial consonants in two or more adjacent words . 10 President Kennedy used alliteration in the following quotation : “ Already American vessels had been searched , seized , and sunk .” 11
Some less familiar schemes can enliven one ’ s writing , too . One of those is “ anastrophe ,” the inversion of customary word order . Recall : “ Honorable is the soldier who gives his life for his country .” Earlier , I used this inverted sentence to introduce schemes generally ; more precisely , it illustrates anastrophe . An everyday example is : “ One case does not a career make .” Another helpful scheme is “ isocolon ,” which enhances the effects of parallelism by making the parallel elements in a sentence similar in length . For example : “ His aim was to comfort the afflicted and afflict the comfortable .” 12 Finally , the writer who wishes to produce a strong emotional effect can employ a scheme known as “ anaphora ,” which repeats the same word or words at the start of successive clauses . For example , the theologian Reinhold Niebur wrote : “ Man ’ s capacity for justice makes democracy possible , but man ’ s inclination to injustice makes democracy necessary .” 13
Among tropes , which assign unfamiliar meanings to familiar words , the two bestknown forms are “ metaphor ” and “ simile .” A metaphor is an implicit comparison between two things that are fundamentally dif- www . vtbar . org THE VERMONT BAR JOURNAL • SUMMER 2016 31