The closing speech or peroration
Judge Michael Hyam, in his book “Advocacy Skills” recommends that when you are giving a speech in court, you should do so with a clear purpose in mind and suggests that using the classical rhetorical model may prove useful. He summarises the key elements of a classic rhetorical speech, saying:
“The Ancients divided the form of a speech into the beginning or exordium, the purpose of which was to prepare the members of the audience in such a way that they would be prepared to lend a willing ear to the rest of the speech. Next came the statement of facts...which was intended to indicate the nature of the subject on which the judge would be called upon to give judgement. The proof followed next and was designed to show that the law as applied to the facts demonstrated that the decision should be made one way and not another. The peroration was a summary of what had gone before, artistically emphasising the favourable points and undermining those of the other side.
According to the classical rhetoricians, the principal purpose of the conclusion or closing speech is to play on the feelings of the court. Quintilian insisted that the
“peroration is the most important part of [legal] pleading and in the main consists of appeals to the emotions.”
“In the peroration we have to consider what the feelings of the judge will be when he retires to consider his verdict, for we shall have no further opportunity to say anything...it is therefore the duty of both parties to seek to win the judge’s goodwill and to divert it from their opponent, as also to excite or assuage his emotions.”
Quintilian especially recommended using the peroration to play on the fears of the court:
“The appeal to fear occupies a more prominent place in the peroration than in the exordium (introduction).” This suggests that policy considerations should be mentioned in the peroration if they are likely to raise concerns about "opening the floodgates" to new types of claims, for example.
Richard Du Cann in his book “The Art of the Advocate" had this to say about final speeches and perorations.
“ Part of the art of advocacy lies in its concealment. Even where he follows Aristotle’s order in his speech of Exordium, Statement, Confirmatio, Refutio and Peroration there should be no obvious display of these divisions. It may be to avoid this particular pitfall that many advocates seem to use no order at all. It may be they seek to avoid the controversy as to which part of their speech should be devoted to their most important point. Two schools of thought exist. One demands it should be put first. This assumes such a lack of skill in the advocate that his audience is liable to be asleep within five minutes of starting. The other advises it should be put last on the basis that at least the jury will carry that point with them to the jury room. This assumes that all the other points have been put so clumsily that none but the last will be remembered. Since both are arguments for defeatism, both should be ignored. If the advocate really feels he has only one point worth making then he should make it quickly and cleanly and sit down.
If he does so, he will deny himself many pleasures, principally that of delivering a peroration. Modern advocates tend to eschew the use of this peculiarly forensic extravaganza. Yet, until quite recently, it was possible to see counsel winding themselves up to sweep into the majestic spontaneity of their carefully prepared final onslaught on the emotions of the jury.”
Richard du Cann clearly believes that a) a peroration is worth doing unless the circumstances dictate that brevity and simplicity is a better approach b) that being able to deliver a peroration is part of the art of the advocate c) that like the classical rhetoricians the main aim of the peroration is to persuade the judge and jury as to your case theory d) that depending on the nature of the case this could well involve playing on the emotions of the judge and the jury, and bringing together the three main rhetorical elements of ethos (credibility), logos (logical argument) and pathos (emotional appeals). In Richard du Cann's view, rhetorical language and rhetorical tricks that help persuade form part of the crafting of the peroration or closing speech. However, he also cautions against using rhetorical tricks just to show off. Instead, he advocates:
“practising moderation if not in all things, then at least in the use of these verbal condiments. Alliterations may run happily from his tongue...but he must not play the same trick twice in one speech. Similarly, the use of hyperbole, metaphor, simile, inversions of language, parallels and allegories should be carefully controlled.” It is interesting to note that he is not saying that you shouldn't use rhetorical tricks like alliteration, hyperbole, metaphor, simile, inversions of language, parallels and allegories - rather that you should exercise judgement in using these techniques.
A word of warning
As Richard du Cann mentions, modern advocates tend to eshew the use of the peroration and appeals to the emotion. Historically, law was theatre. If you read some of the descriptions of trials in the 18th and 19th centuries, you will see descriptions of men and women turning up in all their finery to court, as if they were going to the theatre, tickets being sold so you could sit in the public gallery, breathless newspaper reports on the day to day conduct of sensational trials, and this atmosphere of high drama surrounding high profile trials. This was actually encouraged by the Bar, as the high public interest in trials meant that citizens understood the role that lawyers played in defending their rights, and gave them a sense of ownership in the criminal justice system. At that time, barristers were the rock stars of their day - people would have favourites, like Curran, Erskine or Marshall Hall, and would buy transcripts of the trials so they could read about the drama in court. When an advocate won, particularly if they were viewed as a barrister who stood up for ordinary people like Marshall Hall, whose nickname was "the Great Defender", the verdict would be greeted by loud cheers both inside and outside the court, and the barrister concerned would be carried out on the shoulders of an adoring public, often to the nearest pub.
So in those days, law was theatre, and moving appeals to the emotions in the closing speech or peroration were the norm. However, nowadays that is not the case, and so in a lot of cases using such moving language would be jarring and inappropriate. For example, if you were dealing with a standard tax case, in a Tribunal, it would probably be inappropriate. However, that doesn't mean that appeals to the emotions are no longer used. They absolutely are, but they tend to be used in cases that have either a high level of public interest, or which are emotional in nature, and part of the judgement of an advocate is working out when it is the right time for a full peroration, and when a less emotional closing speech is called for. But either way, there will certainly be times when you will need to use these techniques, and for that reason it is certainly worthwhile studying legal rhetoric, so when you need to use these techniques you know what they are, and how they work.
Basic elements of a closing speech
According to the BPTC book on Advocacy, the purpose of a closing speech is to:
- Bring together the story and the themes of the case into a coherent narrative
- Identify the other side's case theory, and where possible, show why it doesn't hang together and highlight the weak points in the other side's case.
- Reinforce your client's story by reference to the evidence that has been presented, which you then comment on.
- Persuade your finder of fact that your case theory, rather than the other side's, is correct.
- Deal with any unfavourable evidence
- Summarise the key legal points that are relevant.
The views of the ancient rhetoricians is pretty much the same except that they take the view that the peroration should include any and all rhetorical devices that the advocate believes will work given the situation, and also that the closing speech should bring together the figures of ethos (credibility), logos (logic) and ethos (appeals to the emotions) and end on a high, emotionally charged note.
In a modern context, a brilliant example that brings together perfectly the modern and classical approaches to a closing speech is the closing speech in the prorogation case. Whilst it includes all of the elements that the BPTC Advocacy book flags above, it is also a brilliant piece of legal rhetoric, that actively uses figures like alliteration. Whilst figures of ethos are normally found in opening speeches, there is one that can be used in closing speeches too, and that is the parrhesia. Parrhesia is the act of speaking truth to power - it involves courage and risk and is very closely linked to the personal credibility of the advocate, and it plays a key role in this closing speech. You can find a copy of the speaking note in the prorogation case here167.44 KB, and you may find it helpful to read it and analyse it in terms of its structure, its use of language, and its use of legal rhetoric with the above comments on closing speeches in mind.
One of the reasons that the peroration is used less than previously is that law students are no longer taught classical legal rhetoric and are therefore unaware of its purpose. Experienced practitioners, who have often studied classical legal rhetoric in depth, are far more likely to use them and appreciate the value of them. Law students may find it useful to adopt a similar approach, since it is a hallmark of an accomplished advocate.