If you are going to try a lawsuit, you must first think about the trial as a whole and then consider what materials (witnesses, evidence), tools (arguments, questions), and techniques (leading questions, styles of discourse) you will use. More broadly, if you are going to make a profession of trying cases, you must first understand the trial process and then analyze what your role in it will be. . . .
Robert F. Hanley counseled lawyers to study the great works on rhetoric, paying particular attention to Aristotle's Rhetoric and Quintilian's Institutio oratoria. Aristotle, who wrote in the fourth century B.C., diagrammed the structure of persuasive discourse, and argued for needed reform. Quintilian's work, thought tedious by some, put the study of rhetoric at the center of any enlightened system of education. The formal study of rhetoric, it is said, began in Sicily to train pleaders who appeared before the courts to claim lands seized by a tyrannical government.
Edward Bennett Williams wisely likened trials to dramatic presentations, in which the lawyer is producer, director, actor, and stage manager, but all within the quite demanding constraints of the evidence and the law. If we take Williams seriously---and we should---we will study the role of drama in history. For our ancestors, the Greeks, drama is a principal means by which moral and political lessons are taught. The drama of a trial is a search for justice in a public forum.
Both rhetoric and drama are essential to the trial lawyer. This is true for three reasons. First, when we try lawsuits, we are doing something that has been done before, and for centuries past. Those who first wrote down and taught the techniques we still use believed that this craft was knowable and teachable. Some have said that it is not because they wish this power to influence events to be controlled by a few for the benefit of a very few. Others simply believe that trying cases is an art form, so that innate talent will always trump study and practice. I do not believe that.
Therefore, returning to our traditional roots reminds us that there are principles of presentation and argument that have been validated through experience. Gaining this experience vicariously does not require one to wade through Aristotle, although you would find him a lot easier to master than Quintilian. You can glean the point by reading accounts of old trials. If you choose this ostensibly easier path, you will probably be reading the words of lawyers who did study the ancient art and science of rhetoric.
Second, it is always easier to act yourself into right thought than to think yourself into right action. Training to be a trial lawyer involves doing things the right way until you acquire the habit. I found that to do this efficiently, I needed names for particular devices and techniques so that I could classify what I had done. For example, I want to learn how to use metaphor effectively. I want to know when to ask rhetorical questions. I want to advance from an accepted principle through a series of steps to the result I advocate. In each of these cases, I am using a device of classical rhetoric. Why trouble to invent new categories for what I am doing when the old ones lie ready at hand?
Third, by placing ourselves within a professional tradition, we reaffirm that we have a role in achieving justice. We are not simply hired speakers.
Rhetoric became formulaic and arid well before the Middle Ages. In the early history of the United States, the very term was used to denote a system of rules for stilted speech. Even today, the word may be coupled with "mere" to mean artificial elegance or empty phrasing. Happily, there has been a modern revival of rhetorical insight into communication and persuasion.
Rhetoric and its kindred discipline semiotics are not concerned solely with speech making. They deal with the use of language in persuasion, including the language that witnesses use to describe events. In my view, there has been too much emphasis on lawyer argument and not enough on how witnesses spell the difference between victory and defeat.
Ed Williams told of a motion argument he made as a young lawyer. He staggered into the old District of Columbia Court of General Sessions with two books under each arm. (This was before the days of photocopiers, when law books had to be carted to court.) A courthouse habitu, a lawyer whose office was no doubt the telephone booth in the courthouse hall, looked at him disdainfully and intoned, 'Throw away those books, boy. Get yourself a witness.'
Almost all legal education in one way or another deals with rhetoric in the narrow sense, that is, with the form of arguments. A brilliant and provocative modern literature exists on this subject. For us, it is enough to understand this characteristic of legal education. Most of the advocacy writing and speaking that law students do is purely legal argumentation to a hypothetical tribunal. Until the late 1980s, appellate advocacy competitions stressed debate skills to the exclusion of the students' ability to parse a factual record and restate factual contentions persuasively. In law practice, young lawyers spend less time now than formerly with witnesses and more time with law books.
Then comes preparation to try the big case. Depositions and discovery responses have mounted up. A trial consultant is hired. The trial consultant begins---and sometimes ends---by working with the lawyers to develop an expanded opening statement. This statement is exhibited live or by video to one or more focus groups selected from the community where the case will be tried. In these exercises, the emphasis is on the persuasiveness of lawyer speech, not so much on evidence and witnesses.
Yet witnesses are far more important in trials now than two or three hundred years ago. When Andrew Hamilton addressed the jurors in the case of John Peter Zenger, the colonial newspaper editor, he told them they were summoned from the vicinage because they had 'the best knowledge of the facts that are to be tried.' Today, jurors with personal knowledge of the disputed facts may be disqualified. Indeed, Hamilton was probably guilty of hyperbole. Juror personal knowledge was not much of a factor in trials after the sixteenth century.
For the past hundred years, the rules disqualifying classes of witnesses have been struck down one by one. Parties, accomplices, married women--their alleged implied bias becomes simply one more fact for the jurors to consider in evaluating their testimony.
Yet judges, jurors, and experienced advocates report that lawyer performance when examining witnesses is lamentable. To avoid such a judgment of your own performance . . . three important major premises . . . the witness examination problems you will encounter in trial. The three premises are:
1. Deciders perceive whole stories.
2. The way you tell it makes all the difference.
3. You always navigate by dead reckoning.
* The above was excerpted and modified by the 'Lectric Law Library from the book 'Examining Witnesses' by Michael E. Tigar The Amer. Bar Assn. 1993. 315 pgs hrdbnd; Prod. Code 531-0093; Cost $110. For more info call the ABA at 312-988-5522.
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