But since rhetoric exists to affect the giving of decisions – the hearers decide between one political speaker and another, and the legal verdict is a decision – the orator must not only try to make the argument of his speech demonstrative and worthy of belief: he must also make his own character look right and put his hearers, who are, to decide, into the right frame of mind.
Aristotle, The Art of Rhetoric
Sitting at a sushi bar nearly forty years ago as a newly minted lawyer being introduced to the culinary delight of raw fish delicately sliced with artistic flare, I artlessly asked the middle-aged chef how long it had taken him to learn his skills. Taciturnly, he said still learning. It would take years to figure out what he meant – perfection is a process, not a destination. Zen.
Perfecting one’s skills in rhetoric and advocacy is the same – a never-ending journey of striving and evolving, of emulating and improvising, of observing and learning. What may have worked seven, five, or even two years ago may now seem passé and less effective. The audience’s tastes, sophistication, tolerance, attention span, thought processes, etc., have likely changed. As have their socio-economic status, political views, and day-to-day existence. The advocate must adjust to the times and to the occasion.
Knowing the audience – how it thinks, feels, reacts – is also essential in fashioning and presenting the message to achieve the desired result. There is no magic answer. Even under the best of circumstances there is no guarantee whether the rhetorical devises, advocacy decisions, substantive messaging, or presentation packaging will yield the optimum outcome. But as the saying goes, prior preparation prevents poor performance.
Like the sushi chef, the advocate who strives for unattainable perfection is still learning the craft, still striving to improve his or her rhetorical skills, still challenging and evolving his or her advocacy techniques. How better than by watching others perform – even if the forum is dissimilar and the procedure is exceptional. Much can be learned by observing the skills on display, dissecting the strategic and tactical decisions made, and assessing the general use of rhetorical and advocacy tools employed. The second impeachment trial of former US President Donald J. Trump was a good example from which to learn.
Impeachment being a political process and not a strictly legal one, compels me to take a pass on whether the charge against Trump was proved to the requisite standard through the evidence presented. Anyone who watched the entire impeachment trial can draw his or her conclusion. My interest in posting on the impeachment trial is for the reasons I watched every bit of it: to see the quality of advocacy and perhaps learn something from either the House of Representatives Managers (the House Managers) or Trump’s defense lawyers. There is plenty to unpack for didactic purposes, but here are just some takeaways. Much will be known to seasoned advocates.
Primacy & Recency
Aristotle was probably the first to tell us that what you say at the beginning and what you say at the end are what is most likely to be remembered. This applies to just about everything throughout a trial. The opening must be strong, as must the closing. But also, the opening and closing, and in every presentation in-between, adhering to the primacy & recency principle is essential. Occasionally, there may be a need to spend a sentence or two on an aside at the beginning of each presentation, but it should be exceptionally brief, relevant, hopefully compelling, maybe personal, certainly transitional. To go on and on about how grateful, how challenging, how impressive, etc., to be before the august audience is wasteful. Just as it is wasteful to start by making technical objections, non-sequitur retorts, or snide remarks about the other side. The House Managers were particularly impressive in adhering to the primacy & recency principle. The defense lawyers, clueless of this fundamental rhetorical technique, squandered precious opportunities to draw the audience in and maintain their rapt attention to their narrative from beginning to end of each presentation.
Develop a clear, concise, consistent, constructive, and convincing narrative
In any trial you need a theory of the case with a facilitating strategy and attendant tactics that unveil a coherent narrative that persuades. The House Managers were well structured and precise in presenting a consistent narrative that was well grounded in facts, supported by compelling visual evidence, relevant timelines (often with split-screen imagery), packaged in emotive yet measured language, rhetorical devises, and logical assertions. Conversely, the defense lawyers were disjointed, presenting nonsensical and often contradictory arguments, leaving it to the audience to conjecture the point they were laboring to make. Granted the facts were not on their side, but if you only have lemons, at least try to make some potable lemonade. To engage in histrionics and to dance around unresponsively to the most obvious issues the factfinders need to resolve, is transparently telling: with neither the law nor the facts being favorable, the resorted to the advocate’s desperate ploy of melodramatically pounding the table, attacking the opposite side, projecting victimhood. Gorgias, the eminent ancient rhetorician and foremost sophist, would be aghast by the amateurish and unimaginative strategy and tactics paraded as advocacy by the defense lawyers.
Keeping the presentations seamless
When you have multiple presenters, is it essential to present the narrative much like a relay, with each presenter passing on the baton with no backtracking, no fumbling, no missteps, no misdirection. This is not always easy since some overlap is unavoidable. The trick is to use transitional sentences when passing on the baton – alerting the audience what to expect and why. One such example is where the audience is alerted that video footage previously viewed (as was numerously done) is for a discrete reason not previously relevant to the preceding presentation but contextually essential in the present one. Linking the arguments and presenting them from different contextual vantage points strengthens the arguments individually and collectively (much like a cable) and enhances in establishing the overarching theory of the case. Overdoing it should be avoided. At some point the audience gets desensitized, or gets bored, or starts thinking that they are gratuitously being emotionally badgered.
Tone matters almost as much as substance
Finding the right tone to deliver the narrative is as important as having the right substance. Of course, the tone will vary appropriately during the presentation, as should the volume, inflection, and any complementary gesticulations. Starting in high pitch, with over-the-top righteous indignation, or reading rapidly aloud with no inflections, no pauses, no eye contact – as was done by virtually all defense lawyers on each occasion they rose to perform (except during the meandering, stream-of-consciousness, feign-folksy opening that baffled as much as it irritated) is as unpersuasive as it is irritating. Also, using poetry to convey ideas is great, provided it is the right poem, easily accessible to understanding, and appropriately delivered. One defense lawyer took a stab at reading a poem as a rhetorical device in support of the recency principle I alluded to earlier. The problem was that the poem did not seem to fit the occasion, but even if it did, the delivery was abysmal. Reading speedily in monotone, with garbled and fumbled enunciation, and inexplicably chocking teary-eyed over what may have been a moving stanza though incomprehensively delivered, made for an odd, bizarre, head-scratching ending.
Know your audience
It is a cardinal rule that in preparing how to craft and deliver the narrative, you need to know the audience. Here the audience were US Senators. They pride themselves for their civility (there are exceptions) and their uncanny ability to artfully engage in passive aggressiveness, hypocrisy, and duplicity, eschewing the rough and tumble, bareknuckle, verbal fisticuffs generally seen in the House of Representatives and tolerated in some state and local courtrooms where juries expect and demand adversarial (in every sense of the word) advocacy. Pitching the message to the targeted audience in the most receptive manner is integral to persuasive advocacy.
Know the venue rules
Never show up to argue a case without knowing the rules of the venue. At one point the House Managers asked for a witness to be heard. This meant, by impeachment rules, that the witness would be questioned (deposed) by the parties at the Capitol, with the Senators receiving the transcript or watching the video of the deposition as part of the hearing. Embarrassingly, the defense lawyer assumed that either the witnesses would be subjected to questioning in the Senate as if in a courtroom setting, or that depositions would be taken his office as is the custom in his state’s civil law practice. After hyperbolically and rashly claiming that he would call 100 witnesses – including House Speaker Nancy Pelosi and Vice President Kamala Harris – to his office in “Philly-delphia”((He later claimed his mispronunciation was “a point of oration… to make an effective point.” If that was indeed his intent, he failed dramatically.)) to be deposed if the House Managers insisted their one witness be heard. Whether in response to the bizarre pronunciation, or the shear ignorance of the procedures, or both, the Senators broke into hearty laughter. The defense lawyer looked and sounded like a court jester, a buffoon worthy of derision and disrespect.
Be accurate with the facts and law
No matter how careful one is, mistakes on the facts or the law will occasionally be made. This should be rare. Taking liberties with either the facts or the law, when done so routinely or as a matter of strategy (as it appears from the Defense), does an enormous harm to the presenter’s integrity. At some point, especially when the facts as presented are obviously false or when contorting the interpretation of the law beyond self-evident logic, the audience tunes out; stops listening. Bad facts are better embraced and confronted head on, rather than distorting them into something they are not. Persuasion through confabulation is counterproductive. And unethical.
Answer questions forthrightly
The impeachment trial called for the Senators to pose questions to the House Managers and defense lawyers. I’ve had trials where the judge allowed jurors to pose questions in the same fashion. Presumably, the finder of fact is seeking a concise and straightforward answer to the question posed. To avoid answering the question, or to use this opportunity to address other unrelated answers (as in rebutting), or to speechify about the question or something else, is insulting to the questioner/factfinder. Hardly a way to endear yourself, to score points, to persuade on an issue that obviously is of importance to the factfinder.
Synthesize logic with passion, gravity with levity, past with future
Constructing a compelling presentation that is scheduled to take some 16 hours to present, requires careful planning and creative thinking. Cold logic is usually not enough, and hardly sufficient to capture and captivate the attention of the audience. Which is why, rather than recite the evidence and lecture on the Federalist Papers, the House Managers – especially Jamie Raskin, David Cicilline, Stacey Plaskett, and Joe Neguse – brought their personal stories into the mix of their arguments, making self-effacing remarks, injecting humor, and sounding the alarm for the future. Poignant, personal, and relatable. Instructively, the House Managers humanized cold logic with personal vignettes that spoke to the events, to the historical context of the proceedings, to the fabric of what was at stake: America’s democracy and unprecedented unpeaceful transfer of presidential power.
Keep the wrap up short, punchy, evocative
Less is more. But rather than describe what I thought was a masterful wrap up, here is the link to Jamie Raskin’s brilliant summation. I’ve added this to my trial advocacy training material. Perhaps you should too.
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Amazing post, as always.
I wrote my undergrad dissertation on Aristotle’s Rhetoric, using Xenophon’s Anabasis as a case study. Reading your modern analysis on practical issues facing advocates is a pleasure, not just because it is instructive, but because it is also entertaining. Thank you