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Brooke Thompson
Dr. Lopez
ENGL 3050
8 December 2014
Rhetoric as an Integral Element of Courtroom Practices
The formation of rhetoric traces all the way back to the Ancient Greek times when the
idea or definition of rhetoric was brought forth to the public as a powerful, skillful art to possess.
Rhetoric defines itself as the art of persuasion where political power derives. Looking
specifically at Aristotle’s definition of rhetoric, he believes that “Rhetoric is the faculty of
observing in any given case the available means of persuasion” (Herrick 69). Aristotle, a master
rhetorician of his time, broke down the idea of rhetoric into three settings—deliberative,
epideictic, and forensic—all of which we will further discuss with forensic being our main topic
of focus. Forensic rhetoric, or legal rhetoric, has remained an integral aspect of the three settings
of rhetoric into today’s contemporary courtrooms and court practices. In our modernized
adversarial system of government, the use of rhetoric is critical to any outcome of a case.
Rhetoric—being the art of persuasion—is the foundational tool in which lawyers must possess in
order to be successful in practice. Without the proper use of rhetorical strategy and word choice,
success in the courtroom is impossible. As the court makes its judgment, the lawyer’s
responsibility is to persuade not only the jury, but the public and the judge who will ultimately
decide on a law that could potentially set national precedence, which by law, must be applied in
every other state court. The power of rhetoric in the legal world makes all the difference in case
verdicts and must be utilized in the opening and closing statements of trial, the direct and cross
examinations, and during the testimonies of the witnesses. This persuasive tool is a necessity in
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court as the trial process is a place of malice argument full of cogent words and phrases. Without
eloquently mastering the art of persuasion, or the war on words, a lawyer can never be
prosperous in today’s modern court room practices.
Briefly referencing the history of Aristotle’s branches of rhetoric, he believed rhetoric to
be broken down into three parts: deliberative, which is political or legislative speech, epideictic,
which is ceremonial speech, and forensic, which is legal or judicial speech, commonly known as
judicial oratory. According to Aristotle, judicial oratory was designed to focus primarily on the
past rather than the present or the future, in purpose of determining the guilt of someone’s past
actions. The idea of this type of rhetoric was to use it as either a determinant system against
someone who has broken common law: “According to Aristotle, those employing judicial
rhetoric either use this style as accusation [kategoria] or defense [apologia] either for or against
those who have violated the written or cultural laws—what Aristotle refers to as the
‘wrongdoers’” (Dalton). Judicial oratory was formally practiced in a courtroom or legal
proceeding of Aristotle’s time, as it still remains used today in our adversarial system of
government. In order to understand the importance of rhetoric in the courtroom and how it plays
an integral role in the outcome of a case, one must understand the history and the foundational
purpose of judicial oratory. As Aristotle has taught:
Judicial or forensic oratory is not focused so much on proving whether or not the
law was broken. . . it is more specifically the art of crafting an argument as to why
a crime was committed and whether or not punishment is deserving of that crime.
The ultimate purpose of judicial oratory is to craft an argument to persuade the
audience to believe or feel a certain way about the past (Dalton).
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This specific branch of rhetoric has nothing to do with evidence in a case and its strength in
determining a verdict, although important; this branch more so reflects the idea of persuasion and
how that determines the outcome far beyond evidence and materialistic support. Furthermore,
Aristotle taught the importance of mastering this art of persuasion because in his time,
courtrooms didn’t possess affluent lawyers and knowledgeable judges with years of precedence
under their belt. In Aristotle’s time, the trial process consisted of commonplace people,
representing themselves. In fact, “The Greek legal system was entirely centered on the abilities
of ordinary people to effectively articulate their case and persuade a group of ordinary people to
vote for their cause. This is why oratory was so essential, learning the craft of how to persuade a
group of people, the jury, to ultimately agree with your perspective” (Dalton). Oratory was
essential specifically for the purpose of persuading others on a certain point of view, or in other
words, persuading the jury beyond a reasonable doubt in a criminal court of law. Understanding
this portion of history of forensic rhetoric and how it was principally founded, helps with the
understanding of its use and importance today. Rhetoric in the legal world has remained just as
powerful today as has any other form of rhetoric used in other present-day forums or arenas.
In our modern courtroom procedures, the trial process captivates the significance of
rhetoric the most in judicial oratory, as it is used during the opening and closing statements, the
direct and indirect examinations, and the witness testimonies in court. During the trial process,
the use of rhetoric is the only factor that persuades the outcome of the jury’s decision making.
Focusing primarily on the opening statement, it was designed as the first point of verbal contact
with the jury, where the attorney is expected to deliver a statement vividly enough that it paints a
picture or roadmap for the jury to follow throughout the trial The duty of the counsel is to “create
a scene in [the] opening statement that is indelibly fixed in the minds of the jurors. A lawyer who
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fails to argue the client’s case in opening statement consistent with the canons of ethics and
within the rules of procedure and evidence is simply not doing his or her job” (Johnson). The
opening statement gives an attorney the opportunity to construct a mindset for the jury to adopt,
that will later influence their decision making when the trial comes to an end: “The opening
statement, if properly presented, should persuade, and in some instances, move the jury to tears.
It is an opportunity almost too good to be true, and it is so important that it should never be
waived” (Johnson). Furthermore, not only is the opening statement crucial to the outcome of the
case, but the entire trial process should be taken into consideration as a means of persuasion.
Rhetoric should be utilized to its greatest capacity through the opening statements to the
examinations and testimonies of the witnesses on stand. The lawyer has a duty to incorporate the
different aspect of a trial in order to effectively win his or her case. In fact, “The advocate should
use every phase of [a] trial to persuade. Persuasion is an art practiced in its most subtle form in
the opening statement” (Johnson), as well as throughout the remaining phases of trial.
The way Aristotle formed the idea of forensic rhetoric during his time as a form of
persuasion, used to convince a jury of past actions, directly correlates with how today’s jury and
judges make decisions based on the evidence of a case. The evidence, or the burden of proof, is a
case proven beyond a reasonable doubt through the use of rhetorical strategies. The only weapon
in a courtroom for attorneys consists of their ability to functionally iterate rhetorical techniques
to their audience. The goal or “The key is the selective use of language and the choice of words.
Language is crucial to your case. The use of the right word, the right phrase, and the right
sentence accomplishes in that perfectly subtle manner the creation of the proper subconscious
mood of feeling that no amount of emotional appeal can equal” (Johnson). Not only do the
proper words persuade the audience, but also the attorney’s use of motion and his or her overall
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conduct and appearance. It’s the “Cadence, rhythm, tempo, and even your demeanor [that] are
effective persuasion techniques” (Johnson). All elements of rhetoric contribute to the way the
jury and the judge reacts to the advocate’s point of view. The argument must be demonstrated
through all elements of the body as a tool for persuasion throughout the entire process of trial,
not only for the advocate’s personal point of view, but for every other element introduced in trial
that contributes to the overall case: “The best type of advocate accomplishes this goal using
various rhetorical techniques, attempting to manage other people's perceptions of such things as
the facts, the lawyer's own theory of the case, the credibility of eyewitness testimony, the
weaknesses of opposing counsel's claims, and the praiseworthiness of the lawyer's own client”
(Clements). Furthermore, the way in which words are chosen and delivered in court can
manipulate any hard evidence, simply by word choice. For example, a familiar, famous case that
was acquitted based on the closing phrase, caused the jury to deliberate, throwing out all other
evidence, and focusing solely on the last phrase of the closing argument. The O. J. Simpson case
poses a great example for several controversial topics pertaining to court decisions. However, in
this particular case, the argument here is that the case was determined based on the closing
statement and not the evidence presented in trial: “’If the gloves don’t fit, you must acquit.’
Johnny Cochran’s outrageous statements to the jury in his closing argument distracted the O. J.
Simpson jury from the strong evidence against his client, and helped Mr. Simpson win an
acquittal” (Bernstein). In court decision making, the use of rhetorical strategies makes all the
difference.
Overall, forensic rhetoric is a fundamental element of courtroom decision making
because of the power of language that holds over the jury and the judge presiding over the court.
Based on the facts detailed above, “legal vocabulary matters, and it matters because it grants
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discursive permission, or not, for judicial consideration...in coming to a legal conclusion”
(Waldron). Rhetoric encompasses the very essence of judicial oratory, from its foundational
formation during the Ancient Greek times, until now in our modern day, adversarial, systemized
government. Today, lawyers are expected to have mastered the art of persuasion—the means of
successful oratory in the courtroom. In reality:
Success inevitably boils down to persuasive legal argumentation. . .When lawyers
do battle in the courtroom, whichever warrior wages war while wisely wielding
wittier words without waning will win. Thus, if the lawyer's ultimate goal is
winning, the lawyer must master the art of persuasion. For the art of persuasion is
intimately connected with the psychological process of perception. And
perception is what convinces people whether to accept or reject the lawyer's
argument (Clements).
Once a lawyer has mastered the art of persuasion, he or she has mastered the mindset and the
outcome of the judge and the jury of the court. If that art has not been acquired or understood, a
lawyer stands no chance in receiving a successful verdict from the jury. Therefore, rhetoric in the
courtroom will always remain powerful as long as words are what are primarily used to argue
and win a case.
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Works Cited
Bernstein, David E. “The Abuse of Opening Statements and Closing Arguments in Civil
Litigation.” Manhattan Institute for Policy Research. Manhattan Institute for Policy
Research, Inc., Aug. 1999. Web. 11 Nov. 2014.
Clements, Cory S. "Perception And Persuasion In Legal Argumentation: Using Informal
Fallacies And Cognitive Biases To Win The War Of Words." Brigham Young University
Law Review 2013.2 (2013): 319-361. Legal Collection. Web. 12 Nov. 2014.
Dalton, Logan, Gueller, Lindsey, and Koopmans, Leo. “Branches of Rhetoric.” BYU
Rhetoricians. Wordpress.com, n.d. Web. 11 Nov. 2014.
Herrick, James A. The History and Theory of Rhetoric. 5th ed. New Jersey: Pearson, 2013. Print.
Johnson, James A. “Persuasion in Opening Statement-Generating Interest in a Convincing
Manner.” Michigan Bar Journal 90.1 (2011): 42-46. SSRN. Web. 11 Nov. 2014.
Waldron, Brett. "Legal Rhetoric And Social Science: A Hypothesis For Why Doctrine Matters In
Judicial Decisionmaking." Pace International Law Review Online Companion 3.11
(2013): 371-415. Academic Search Complete. Web. 12 Nov. 2014.