Thursday, July 25, 2019
Welcome to Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law. In this series, the Blog will explore ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.
Today’s Rhaw Bar introduces the concept of rhetorical ontology to help explain the persuasive power of the list. In my last post, I suggested that the list has the visual rhetorical features of stacking-up and setting-off information. In this post, I explore other persuasive features of the list through the lens of rhetorical ontology.
This post is not an exhaustive introduction to rhetorical ontology: consistent with the Rhaw Bar theme, we’ll be savoring just a little ‘bite” of the theory. While some readers may be skeptical about a post that explains rhetorical theory, I think that legal communicators become expert legal communicators when they understand rhetorical theory and use it to inform their writing. Understanding rhetorical theory makes legal writers wiser practitioners of the craft; writers can make better choices because they understand—or at least have a plausible way of understanding—why some rhetorical choices might be better than others in a given situation. What I’ve learned in twenty years of teaching legal communication is this: legal communicators with a working knowledge of rhetorical theory have a multitool at their disposal; without it, they risk using the same pocket knife for everything. That is, theory provides better understanding that leads to better doing.
So, with that, let’s look at rhetorical ontology as a theory that can help develop ideas about the way lists work to persuade in legal writing.
Rhetorical ontology —also known, loosely, as the “rhetoric of things”—posits that rhetoric happens at the level of material objects, not just at the level of language. That is, rhetoric is not just about humans assigning meaning to the objects around them. Rather, “things” have their own rhetorical agency—they are agents that interact in and impact rhetorical relationships.
Because rhetorical ontology focuses on the rhetorical agency of objects, one might think that “things” are limited to non-textual objects like trees or couches or rain or the freeway. But, as Scott Barnett and Casey Boyle point out in the excellent introduction to their book, The Rhetoric of Everyday Things, the classical rhetoricians recognized the ontological features of rhetoric in texts and symbols (interestingly, in the kind of texts lawyers work with):
One of the ways Aristotle [in his writings on rhetoric] distinguishes artistic and nonartistic proofs . . . is on the basis of their thingness and material reality. Artistic proofs are those the rhetor herself invents, and they include, most prominently, syllogisms and enthememes. The forms of nonartistic proof, on the other hand, Aristotle defines as laws, witnesses, contracts, tortures, and oaths. Although each of these has a clear discursive dimension, what distinguishes them from artistic proofs is that they “are not provided by ‘us’ but are preexisting.”
So, rhetorical ontology in brief writing, for example, might be thought of as the idea that the typical features of a brief (e.g., a question presented or jurisdictional statement) have persuasive agency in and of themselves, before we as writers creatively engage them. Extending a bit further, Barnett and Boyle suggest that rhetorical things “gather” other rhetors to interact on matters of common concern. In the context of a legal document like an appellate brief, motion, complaint, answer, discovery request, or contract, the document gathers to it other rhetors (e.g., attorneys, judges, clients, property, or other documents) to interact with it in particular ways that the document itself helps to define.
So, how does a list in legal writing gather us as writers and readers to a matter of common concern in a legal document? As I alluded in my prior post, a list gathers writers and readers to it by setting off and stacking up information. The ability to use white space to draw attention to itself and to show the weight of an argument are two aspects of the list’s rhetorical “thingness.”
But, a list has other rhetorical features that reveal themselves through the lens of rhetorical ontology: lists can convey disjunction, disrupt flow, create units for analysis, flatten hierarchies, and resist narrative.
Academic and video game designer Ian Bogost in his book, Alien Phenomenology, Or What It’s Like to be a Thing, places lists in the category of “ontographs”—“record[s] of things juxtaposed to demonstrate their overlap and imply interaction through collocation” (i.e. placing things side by side). Accordingly, says Bogost, lists produce disjunction, rather than flow, in presenting the relationship between concepts. Lists, in other words, let us see a collection of things or the units of an argument, concept, or idea, without necessarily showing the flow or connections between them. Moreover, in her book chapter, Cookery as Flat Ontography, academic Katie Zabrowski Dickman adds that lists, “upon reading, are jarring. The literal flow of our reading is disrupted as we traverse the commas between words in a list both visually and with our breathing. The jarring is productive, attuning us to the distinction between objects.” Zabrowski says that lists also resist the typical narrative structure of the “story”—a structure that legal writers frequently privilege in briefs as a way of presenting the client’s case.
Two examples from legal writing show the power of Bogost’s and Zabrowski’s theorizing to explain the persuasiveness of a list.
Local Rules for Statements of Material Facts. Consider a version of the federal district court local rule that governs the features of summary judgment motions. That rule requires the statement of undisputed material facts in a motion be presented in a numbered list. For example, Local Rule 56.1(a) of the United States District Court for the Northern District of Illinois provides:
[A] moving party shall serve and file . . .a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law. . . . The statement . . . shall consist of short numbered paragraphs . . . . Absent prior leave of Court, a movant shall not file more than 80 separately-numbered statements of undisputed material fact.
The local rule emphasizes the lists’ rhetorical features highlighted above. First, the short numbered paragraph format dictates that the facts are detached from each other, broken apart into smaller units for consideration. This means that the separateness and isolation of each fact unit is emphasized, and a view of the facts as a whole is de-emphasized. Notably, the responding party is expected to engage the facts in the same disconnected manner, responding to each of the numbered fact paragraphs separately. Rhetorically, then, by demanding a list of facts, the rule privileges disconnection over connection, separation over integration.
Second, by requiring the presentation of material facts in a list, the rule limits writers’ ability to present facts in a narrative arc—a form that emphasizes the relationship between facts. Instead, the side-by-side nature of the list’s items makes the presentation less hierarchical; no one fact appears more important than another. The facts are presented as separate units with equal weight. By looking at the list an an ontograph, we can better appreciate how the local rule rhetorically shapes how the information in the list is structured, controlled, and ultimately perceived.
Creating Categories in Judicial Opinions. Consider a footnote that appeared in the United States Supreme Court’s recent opinion in American Legion v. American Humanist Association, where the Court held that The Bladensburg Cross, a World War II memorial displayed on public property in Prince George’s County, Maryland, was not an unconstitutional establishment of religion under the First Amendment. In his opinion, Justice Alito set out a numbered list proposing six “rough” categories of Establishment Clause cases (internal citations omitted):
(1) religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies; (2) religious accommodations and exemptions from generally applicable laws; (3) subsidies and tax exemptions; (4) religious expression in public schools; (5) regulation of private religious speech; and (6) state interference with internal church affairs.
Justice Alito then suggested the possibility of seventh category in a separate sentence, saying “[a] final, miscellaneous category, including cases involving such issues as Sunday closing laws. . . and church involvement in governmental decisionmaking, . . . might be added.”
In Justice Alito’s categorizing footnote, the rhetorical ontology of the list can be seen at work. First, using a list format highlights a point that appears important to Justice Alito in the body of his opinion—the Establishment Clause is not an abstract monolith; instead, the clause is made up of six separate categories, each of which must be considered separately. Justice Alito effectively uses the list structure to explode the abstract “whole” of the Establishment Clause and describe it as real spaces and events of the lived-in world—monuments, schools, churches, speech, and taxes, for example. By presenting the Establishment Clause as a collection of things, his opinion, then, can focus on just one of them.
Moreover, Justice Alito’s use of the list avoids the problem of creating a hierarchy of Establishment Clause categories; he does not need to explain to the reader how the categories relate to each other. While readers might infer a hierarchy or relationship between the categories, Justice Alito offers them a side-by-side equals, each apparently as important as any other, each distinct from any other.
What can we make of Justice Alito’s last and separate sentence that identifies a seventh “miscellaneous” category? This sentence, by its contrasting style, helps to show just how rhetorically effective Justice Alito’s six-part list is in avoiding hierarchy. By placing his seventh category in a separate sentence, he demotes it in relation to the other six thereby creating hierarchy. (We could also imagine a situation where separating an item from a list in this way would promote it in a hierarchy; for example, Justice Alito might have used his final sentence to say something like, “A final category, category X, is the most important one of all.”)
So, in sum, understanding rhetorical ontology lets legal writers think about the rhetoric of the “things” we encounter in documents and to imagine those things as having their own persuasive features that pre-exist and guide our interactions with them. With respect to lists in legal writing, rhetorical ontology helps us see that a list’s rhetorical “thingness” includes
• Flattened hierarchy,
• Non-narrative structure,
• Unit (v. holistic) view,
• Juxtaposition, and
Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. The views she expresses here are solely her own and not intended to be legal advice. You can reach her at email@example.com.