Thursday, September 19, 2019
Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.
Today’s Rhaw Bar asks: can a lawyer be rhetorically effective if the lawyer lacks good character? A Roman rhetorician, Quintilian, didn’t think so. His “ideal orator” needed both eloquence and virtue. Quintilian’s ideas can reframe lawyers’ perceptions of their own work.
In popular culture, “rhetoric” is often used as an insulting term, not a complimentary one. For example, a speaker’s words might be called “empty rhetoric” or “merely rhetoric,” meaning the message is manipulative, dishonest, or insincere. In at least some cases, the implication is that the speaker who is engaging in “empty” or “mere” rhetoric has a poor character rather than a good one. That is, one who engages in “empty rhetoric” is also not a good person.
But first century Roman lawyer and rhetorical scholar Quintilian thought just the opposite. Yes, you read that right: only the “good person, speaking well” (a paraphrase of Quintilian’s words) could engage in rhetoric.
Marcus Fabius Quintilian taught and wrote about rhetoric during the Roman Empire (in the first century A.D.), when the emphasis on rhetorical training and in handbooks was primarily on legal rhetoric. This makes the work of classical Roman rhetoricians like Quintilian particularly helpful to practicing lawyers. (If you want to explore further, take a look at the works of Cicero, writing in the first century B.C.E., and at the anonymously authored Rhetorica Ad Herennium, written around the same time.) In both practice and teaching, Quintilian focused his work on legal rhetoric, and his Institutio Oratoria was his opus on teaching rhetoric.
In Institutio Oratoria, Quintilian describes, among other things, the “ideal orator,” the person who perfectly engages in rhetoric. He argues that rhetoric is not amoral; rather, rhetoric is necessarily moral—the orator’s job is to say what is “just and true.” Accordingly, Quintilian makes virtue a necessarily component of practicing rhetoric; any influential speech that lacks virtue is merely persuasion, not rhetoric.
So, who is this ideal orator who can “do” rhetoric? Quintilian answers: no person can be an orator (i.e., “do” rhetoric) unless that person is a good person—one who chooses virtue over vice, discernment over deception. For Quintilian, virtue is connected to sincerity. Only a virtuous person can be sincere and thus persuade to truth; a “bad” person, on the other hand, while perhaps capable of eloquence (i.e., speaking well), is insincere and thus not capable of rhetoric. The ideal orator is the person who has “the knowledge and boldness to speak with sincerity” while a person of “bad” character is one utters words “at variance” with his thoughts. In sum, perfect eloquence is the combination of speaking well and having virtue or, in other words, speaking well with sincerity.
Well, then, so what about this? Why should lawyers pay any attention to splitting hairs about what rhetoric—and the practicing of it—can mean?
Here’s one idea: In a 2013 Pew Research Center Study, lawyers were rated lowest in the amount of esteem the public holds for them. But Quintilian’s unbreakable connection between virtue and eloquence in the practice of rhetoric empowers lawyers to make a claim for lawyering as a virtuous profession. The craft of legal advocacy—advocacy that is grounded in rhetorical theory more than two millennia old—is, by definition, ethical, moral, virtuous. Framing the practice in this way has the potential to improve lawyers’ sense of the profession’s value to society and, as a consequence, improve their career satisfaction. Great legal advocacy is not insincerity; it is, by Quintilian’s definition, both sincere and effective, worthy of esteem.
Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at firstname.lastname@example.org.