![Law Day panel](images/lawday.jpg)
From left, Alfred Carlton of the ABA introduces a panel consisting of Kenneth Starr, Danielle Allen, Steven Lubet, Seth Waxman, and Jeffrey Toobin.
By JANICE HYDE
"The Lawyer as Rhetor" (rhetor is a master of rhetoric) was the subject of a May 1 program commemorating Law Day 2003. Initiated 45 years ago by former American Bar Association (ABA) president Charles Rhyne, Law Day provides an opportunity to deepen the public's understanding of the rule of law.
Co-hosted by the Law Library of Congress and the ABA's Division for Public Education and moderated by CNN legal analyst Jeffrey Toobin, the program was the fourth in the Leon Jaworski Public Program Series on Representing the Lawyer in American Culture. Other program partners were the ABA Standing Committee on the Law Library of Congress, the Federation of State Humanities Councils, and the Friends of the Law Library of Congress. Past programs in the series focused on the lawyer as reformer, celebrity and judge. A future program will examine the lawyer as citizen.
Law Librarian Rubens Medina underscored the significance of "the lawyer as rhetor" by pointing out that the rule of law is "the rule of words rather than weapons." According to Medina, the link between law and rhetoric is intrinsic, ancient and global.
Seth Waxman, partner in the Washington, D.C., law firm of Wilmer, Cutler, and Pickering and "distinguished visitor from practice" at the Georgetown University Law Center, commented that he mourns the loss of rhetoric in the courtroom. Time limits imposed in today's courts tend to restrict rhetoric, he said. In his opinion, the "hands-down" winner as American rhetor is Daniel Webster. Waxman read Associate Supreme Court Justice Joseph Story's account of Daniel Webster's three-day argument in the case of Trustees of Dartmouth College v. Woodward (1819). Webster insisted, however, that his presentation was all reason, not rhetoric.
Kenneth Starr, partner in the Washington, D.C., law firm of Kirkland & Ellis and distinguished adjunct professor of law at George Mason University, echoed Waxman's longing for a more leisurely time when courtroom adversaries listened respectfully to one another. In courts today, the process relies on interrogation rather than persuasion. Building trust is the "greatest rhetorical challenge," Starr said.
Danielle Allen, associate professor of classical languages and political science at the University of Chicago, added a historical perspective on the relationship between law and rhetoric. Drawing upon her expertise in classical Greek literature, she pointed out that the ancient Athenians had no lawyers, although there were juries. To present a case, one did not study law but rather how to speak, along with subjects such as sociology, psychology and history.
Steven Lubet, professor of law and comparative literary studies at Northwestern University, posed the question, "Don't lawyers just use slick words to obscure the truth?"
He noted that this belief stems from a basic misunderstanding of a trial—a trial is not the search for truth but a search for understanding. To reach understanding we must organize information, and the lawyer as rhetor serves to bring order to chaos. To explain why we need professional lawyers rather than do things as the Athenians did, he noted that unreliable witnesses make it difficult to reach understanding. According to Lubet, lawyers help juries to visualize actual events.
Waxman noted that in an adversarial system, the goal of the lawyer is to persuade on behalf of a client. Starr quoted Judge Gerhard Gesell (U.S. District Court for the District of Columbia, 1967-1993), who said that juries tend to get it right; that is, they figure out who is trustworthy and credible. Allen noted that among the Athenians the best speakers were those who had training in drama and was quick to point out that Greek word for "actor" is "hypocrite."
Toobin asked the panelists to consider the distinction, if any, between rhetoric and reason.
Allen noted that no distinction was made in ancient Greece between rhetoric and reason. Waxman suggested that neither is there a distinction in today's courts; one must go straight to the point without a lot of preparatory or introductory remarks. Starr said that today most judges and justices know the case when they take the bench, no longer making it necessary for lawyers to read the case to the judges, thereby reducing the opportunity for embellishment.
Lubet noted a big difference between trial court advocacy and appellate court advocacy. According to Lubet, in a trial court the lawyers go to great efforts to persuade a jury to accept a particular position. Therefore, the lawyer who can construct a presumably factual narrative that makes sense will be the winner.
"Is a rhetor someone who can sell?," asked Toobin. Waxman responded that any attorney who thinks that his performance is key is doing a disservice to his client. Allen said that among the Athenians, the primary concern was the perception that one literally was selling oneself. That is, being involved in a legal argument purely for monetary gain was considered the worst offense.
Lubet noted that we are in the midst of a historic period when the art of rhetoric is about to change due to the advent of computerized evidence. According to Lubet, presentation of evidence using computerized animation will render everything prior to this outmoded.
He cited two previous historical changes: defendants and plaintiffs were first allowed to testify after the Civil War; and in the 1930s new federal rules of civil procedure mandated discovery (disclosure of facts by the defendant), thereby altering trial preparation.
Janice Hyde is the Law Library program officer.