Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Thursday, August 5, 2021

What Is Rhetoric, Anyway? And Why Should the Appellate Lawyer Care?

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.

The Rhaw Bar Is Back

The Rhaw Bar is back from its long hiatus.  Thanks to the Appellate Advocacy Blog for allowing me to return.  Once a month, we’ll savor a little bite of rhetoric and law.  I hope you’ll share your thoughts, too, in the comments, and let me know what law and rhetoric topics you’d like me to write about in future posts. 

This Month’s Topic:  What is Rhetoric, Anyway? And Why Should the Appellate Lawyer Care?

Rhetoric and rhetorical skills are a topic of interest for lawyers.  But, what are we really talking about when we talk about rhetoric?

 Look at these titles for the different ways rhetoric is used:

  • A Bar Magazine: 5 Persuasive Rhetorical Techniques
  • A Law Review Article: Significant Steps or Empty Rhetoric? Current Efforts by the United States to Combat Sexual Trafficking near Military Bases
  • A Book Chapter: A Night in the Topics:  The Reason of Legal Rhetoric and the Rhetoric of Legal Reason
  • An Article by a Rhetoric Scholar: Critical Legal Rhetorics:  The Theory and Practice of Law in the Post- Modern World

What’s going on here?  Does “rhetoric” mean the same thing in every title?  Not really.  Instead, the titles provide four ways for understanding rhetoric in relation to the law and legal practice.

Rhetoric Is a Set of Strategies for Producing Arguments. The first title, 5 Persuasive Rhetorical Techniques points us toward a definition of rhetoric as productive art, as a means of producing persuasive arguments.  In other words, rhetoric is the way in which we use language (or symbols) to persuade others to adopt a perspective (e.g., the First Amendment does not apply in this case) or to take a desired action (e.g., affirm the trial court). When we think of rhetoric in this sense, the focus is on how we will persuade audiences through our messages.  How to use rhetorical techniques like deductive and inductive reasoning, stylistic devices, analogy, and metaphor fall into this category.  How to invent arguments falls into this category, too.  Rhetorical scholar Gerald Hauser’s definition puts an even finer point on this we he describes rhetoric as a way of doing something with words: “Rhetoric,” he says, “is an instrumental use of language. One person engages another person in exchange of symbols that accomplish some goal.”

Rhetoric Is a Deceitful Way of Communicating.  The law review article Empty Rhetoric draws attention to rhetoric as words that are false, deceptive, misleading, or disingenuous.  Enlightenment philosopher John Locke, for example, called rhetoric “that powerful instrument of error and deceit.”  Two millennia prior to Locke, Plato was equally skeptical of “false” rhetoric, calling it “cookery” or “flattery.” The law review title is an apt example of the “rhetoric as false” definition:  The Navy says it’s eliminating sex trafficking, but is it?  Do its words mean anything at all? Are the words disconnected from reality?

This interpretation of rhetoric is common—we hear about the false rhetoric of one politician or another all the time. Central to this meaning is that rhetoric has no (or very little) role in producing truth; instead, rhetoric leads us away from the truth.  That is, those who use rhetoric must be misleading the audience, seeking to convince others in a way that is inconsistent with reality.  (Below, you’ll see I reject this idea.)

“Legal Rhetoric” Is a Particular Kind of Rhetoric. The title, A Night in the Topics:  The Reason of Legal Rhetoric and the Rhetoric of Legal Reason, directs us to the idea that law is not only produced by rhetoric, but is a rhetoric itself.  In other words, law is a discipline that uses language in a particular way to accomplish particular ends; it has its own discourse commitments.

Legal scholar James Boyd White famously said this about the law: “[Law is a] branch of rhetoric . . .by which community and culture are established, maintained, and transformed. So regarded, rhetoric is continuous with law, and like it, has justice as its ultimate subject.”  (Read White’s article here.)  In other words, if law is continuous with rhetoric, then law is a rhetoric: a way of describing, categorizing, understanding and knowing the world through discipline-specific rhetorical commitments.  Other rhetorics exist, too.  For example, the rhetoric of science is a well-studied subject in which scholars look for the rhetorical commitments of scientific discourse. 

Legal Scholar Gerald Wetlaufer, in his article, Rhetoric and Its Denial in Legal Discourse, argues that law as a rhetoric includes

commitments to a certain kind of toughmindedness and rigor, to relevance and orderliness in discourse, to objectivity, to clarity and logic, to binary judgment, and to the closure of controversies. They also include commitments to hierarchy and authority, to the impersonal voice, and to the one right (or best) answer to questions and the one true (or best) meaning of texts. Finally, the rhetoric of our discipline reveals our commitment to a particular conception of the rule of law.

Wetlaufer suggests that understanding the rhetoric of law as a rhetoric can help us understand the advantages and shortcomings of that rhetoric.  In other words, by recognizing that the law “speaks” in a particular way, we can carefully look at the implications of that way to our understandings of justice, power, lawyers’ reputation, argument, and the rule of law. To get a better sense of law as a set of rhetorical commitments, I recommend Wetlaufer’s article as well as A Night in the Topics:  The Reason of Legal Rhetoric and the Rhetoric of Legal Reason, by Jack Balkin, which suggests that law can be understood as a rhetorical “topics.” (You can decide if you agree with either of them.)

Rhetoric Is a Theory and Method for Analysis and Critique.  The last title, Critical Legal Rhetorics:  The Theory and Practice of Law in the Post- Modern World, draws attention to rhetoric as a theory and method for analyzing and critiquing legal discourse.  Thinking about rhetoric in this way means thinking like a contemporary rhetoric scholar—using rhetoric to study, explain, theorize, and criticize symbol use.  In this context, for example, judicial opinions, statutes, and other legal documents become artifacts for study-- critics apply rhetorical theory and use rhetorical methods to gain insight into the ways in which the discourse works.

Beyond its title alone, Critical Legal Rhetorics is an example of this way of thinking about rhetoric.  Rhetoric scholar Marouf Hasian argues that not only do we need more rhetorical critique of Supreme Court opinions for their political and contradictory features, but also that rhetorical critics need to examine the discourse of less powerful others whose rhetoric is not recorded in the judicial record.  He calls this a “critical legal rhetoric” approach. Hasian says that by situating official legal discourses in the larger public sphere of argument, we can better understand how rhetorical choices impact fundamental rights.  Hasian’s article is just one example of how rhetorical theory and method can be developed to analyze legal texts.  (If you want to better understand the basics of rhetorical criticism, here’s a great book for novices.)

So why should appellate advocates care about these four meanings of rhetoric?

The work of appellate advocacy is centered on reading and writing legal arguments, and rhetoric is, perhaps above all else, a particular kind of sensibility in reading and writing.  Developing a rhetorical sensibility can enable appellate lawyers to have a more nuanced approach to reading and writing. 

First, and probably most obviously, appellate lawyers can write more effective legal arguments if they understand rhetoric as the strategies and tactics of persuasion.  That is, by learning rhetoric, we can learn more about how to write arguments.   

And second, but perhaps not as obviously, if appellate lawyers understand law as a rhetoric that can be critiqued with rhetorical theory and methods, then they can be more sophisticated readers of the law, improving their abilities to “see” and critique legal argument.  In addition, appellate lawyers might also be more attuned to the law’s relationship to justice.  Remember what White said?  Law is a rhetoric with “justice as its ultimate subject.”  I think, as an ethical matter, appellate lawyers should better understand that connection between law, rhetoric, and justice, and reading law as a rhetoric can help develop that understanding.  (If you want to read more, I’ve written here about the connection between the lawyer’s skill of rhetorical criticism and the lawyer’s special responsibility for justice.)

Finally, what about the meaning of rhetoric as empty or false?  I suggest that as lawyers, we reject the idea of “empty rhetoric” and instead consider as more accurate the idea that lawyers produce rhetorical knowledge.  Rhetorical knowledge is not false; it is a way of knowing the world through the enterprise of argument.  As legal scholar Jay Mootz suggests, rhetorical knowledge is generated through legal practice and is relevant to the historical contingencies, controversies, and communities of the human condition.   Mootz convincingly argues that for centuries, we have neglected “the unavoidable role of rhetorical persuasion in legal meaning . . . .  [W]e should return to a conception of legal meaning as rhetorical knowledge.” I think he’s right.

What have I missed in my definitions of rhetoric as they relate to the law? What do you think about appellate lawyers being rhetorical critics? Your thoughts are welcome in the comments below.

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. Among other things she’s up to right now, she’s currently serving on the Florida Bar Association’s Special Committee on Professionalism. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at kkdavis@law.stetson.edu.

https://lawprofessors.typepad.com/appellate_advocacy/2021/08/what-is-rhetoric-anyway-and-why-should-the-appellate-lawyer-care.html

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