The five canons of rhetoric
Legal rhetoric and the structure of a trial today
Whether you realise it or not, the different parts of a trial or skeleton argument (opening speech/introduction, statement of facts, legal arguments, evidence for and against, closing speech/conclusion) is, in terms of structure, a classical rhetorical argument.
The classical legal rhetoricians identified 2000 years ago a wide range of techniques that you could use to improve each element of your argument, including identifying the purpose, approach and linguistic or rhetorical techniques you can adopt. These techniques are described on the site. They are particularly useful to those starting out, as they provide a road map on how you can improve key elements of your written or spoken advocacy.
Basic rhetorical principles
However, before going on to explore those techniques, it is important to identify 3 basic principles that underpin the system of classical legal rhetoric, namely:
1) “The perfect orator is a good person speaking well”. The classical rhetoricians believed that if you wanted to be a persuasive advocate it was essential for the advocate to be personally and professionally credible; trusted by the court; and able to use logical arguments and emotional arguments well. If you were not trusted by the court then you wouldn’t be persuasive no matter what clever linguistic tricks you used.
2) Five Elements: They divided a rhetorical speech or argument into five elements
- How you identify the arguments you can make
- The structure of your argument which includes an opening speech/introduction, a statement of facts, legal arguments, evidence for and against, and a closing speech/conclusion
- Style – how you say it, and the linguistic and rhetorical tricks you can use.
- Memory – how you remember your speech and build up a bank of useful phrases you can trot out when needed.
- Delivering your speech - how to deliver or declaim a speech in terms of tone, pace, intonation, body language, etc
3) Pitching your speech for your audience. The ancient rhetoricians like Cicero, Aristotle and Quintilian also emphasised that you should always pitch your speech for your audience, taking into account the overall circumstances of the case. In a tax case, for example, obvious rhetorical turns of phrase would probably be considered inappropriate and frowned upon, whereas in a highly charged, emotional case, where feelings run high, such techniques may reflect the emotional nature of the case.
Like many other aspects of being an advocate, it takes judgement, time and experience to get it right more often than not. Learning these techniques will give you a range of options to chose from, but in every case you must decide what style of language works best given the circumstances of the case, and also what style best suits your personality. As an advocate you will develop your own "voice" but different advocates will be more comfortable using different techniques, and will also chose to use different techniques in different circumstances. Lord Pannick, for example, has a very simple, elegant and concise style of advocacy, whereas Aidan O'Neill, in the prorogation case, chose to use a more passionate, rhetorical style of advocacy. Marshall Hall, one of the greatest criminal barristers of all time, used simple language that could be understood by everybody, but he used that simple language to elegant and persuasive effect. So there is no one way to be an advocate. Words are your tools, but it takes judgement to decide which linguistic techniques will work best in any given circumstances and also which style best suits your personality.
The ancient rhetoricians emphasised that it’s important to vary your language depending on what you are looking to do. If the advocate is looking to instruct either the judge or jury the language should be plain and simple. If the advocate is looking to please them then they should aim to use the odd elegant turn of phrase. And if the advocate is looking to move the judge and jury then they should use all the rhetorical tricks at their disposal. Studying rhetoric, contrary to popular opinion, does not mean speaking in purple prose or flowery language - in fact they would generally be considered rhetorical vices. Rhetoric is the art of persuasion, and you can't persuade people effectively if they can't understand what you are saying because you are talking in a ridiculously flowery way.