Faculty Of Observing The Available Means Of Persuasion

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Rhetoric, or “the faculty of observing in any given case the available means of persuasion,”1 is a necessary skill for legal advocates.2 While some theorists have argued classical rhetoric in the courtroom has largely died off in favor of what some have called an “inferior” brand of persuasion,3 Aristotle’s Rhetoric, as “the earliest authoritative analysis of persuasive discourse and argumentative techniques,”4 and the Roman treatises that followed5 are still applicable to modern-day trial procedure and would assist trial advocates in most effectively arguing their position and, thereby, advocating for their clients. In order to support the idea that Aristotelian rhetoric not only should be utilized by trial attorneys, but when utilized, would serve both clients and society as a whole, I will be examining the effect on and applicability to the courtroom of the three modes of proof,6 or categories of persuasive discourse, that have stemmed from Aristotle’s Rhetoric: ethos (perceived persuader credibility), pathos (emotional appeal), and logos (logical appeal).7 After discussing the applicability of the three modes of proof to trial practice, and their implications in terms of trial outcomes,8 I will conclude with the argument that, when used in concert, the utilization of the three modes of proof, to the extent the applicable evidentiary and procedural rules allow,9 is likely to lead to the best possible outcome for the persuader as an advocate for his client, as well as the best possible outcome for society as a whole in its pursuit of justice. II. HISTORY OF RHETORIC As the earliest authority on persuasive discourse, Aristotle’s Rhetoric laid the foundation for most of the later Roman treatises on the subject.10 These treatises, which were written for the instruction of audience members of all classes, not just lawyers or politicians, “systemized legal analysis and suggested ways of effectively organizing and presenting commonplace arguments.”11 The authors of these treatises, including Quintilian and Cicero, utilized Aristotle’s rhetorical analyses in order to “divide persuasive discourse, and legal arguments in particular, into three categories: logical argument (logos), emotional arguments (pathos), and ethical appeal or credibility (ethos).”12 These three categories have since been commonly referred to as Aristotle’s three modes of proof. The theories surrounding legal discourse have changed over time.13 Greek and Roman theorists’ analyses were “[b]ased on their close observations of human nature and on their own considerable experience in arguing cases.”14 These historical theorists consistently focused on the audience receiving the message, explored the potential for the manipulation of judges and juries, and analyzed the potential of emotional arguments and lawyer credibility as fully as “logical, definitional, or organizational aspects” of persuasion.15 On the other hand, one could argue modern theorists have a far more limited depth and breadth of analyses.16 Where modern theorists17 often base their notions on the assumption that a persuader’s audience will be largely rational,18 Aristotle conversely recognized that legal audiences would not always have a high legal acumen, sound analytical abilities, or a tendency toward fairness.19 Aristotle thus argued that “an audience of untrained thinkers”20 is that which persuaders should prepare to face rather than erring on the side of treating an audience as if it were fully rational.21 Likely, the rationality and fairness of audiences will most often fall somewhere between where Aristotle and modern theorists have placed them. However, the acknowledgment that every audience is unique,22 and the idea that focusing on and catering arguments toward specific audiences are important,23 support the conclusion that Aristotle and his predecessors’ theories on persuasion, despite and perhaps partially because of their age and complexity, are still relevant in a courtroom setting. Furthermore, for the same reasons, these theories would benefit trial attorneys, their clients, and society as a whole, when utilized properly. III. RHETORIC IN PRACTICE “Revealing how rhetorical knowledge operates in legal practice is particularly difficult since legal practice is marked by a vehement denial of its rhetorical nature. This denial usually is expressed by an insistent claim that legal practice involves only dialectical reasoning about objectively determined concepts.”24 I will attempt to demonstrate, with full knowledge of this limitation, that the utilization of Aristotle’s three modes of proof, the logical along with the two considered less rational while catering them to a persuader’s audience,25 is possible, still occurs in the courtroom setting, and can be a beneficial tool for trial advocates. Furthermore, I will argue that the use of these modes is the most effective way to demonstrate the validity of one’s claims and come “as near such success [persuasion] as the circumstances of each particular case allow.”26 In order to be in command of Aristotle’s three modes of proof, an advocate “must be able (1) to reason logically, (2) to understand human character and goodness in their various forms, and (3) to understand the emotions-that is, to name them and describe them, to know their causes and the way in which they are excited.”27 While the value of these skills to an orator, politician, or lobbyist may seem obvious, their value, as well as their applicability, has been the topic of much debate among theorists when applied to persuasion in the courtroom. In the following sections, I will detail the different arguments that have been made regarding the applicability, viability, and ethics of trial advocates’ use of Aristotle’s three modes of proof in a courtroom setting. A. Logos—Appeals to Logic Logos seems to be the most widely promoted,28 accepted and sought after29 mode of proof in legal argument. Stemming from the emphasis on logical appeals that has saturated the profession, some legal theorists have argued that legal rhetoric has transcended classical rhetoric in favor of a

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