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I.

Introduction

A lawyer is a person who practices or studies law; an attorney or a


counselor,whose profession is to represent clients in a court of law or to advi
se or act

for them in other legal matters.

the theory and practice of law,

and

Person certified as

licensed

to

trained

in

give legal advice and

to represent others in litigation within a particular jurisdiction.


A lawyer might be a good lawyer, but if something screws up,
doctrines like res ipsa loquitur the thing speaks for itself can find the
lawyer in hot water. If some fault can be found in their conduct in a
particular case then they can be found guilty of negligence even if the
broader evidence suggests they are the best, least negligent lawyer in the
country.
The first attack on rhetorics argues for a politics of reason whose
indisputable truths can only be obscured by the rhetoricians passionate
appeals. The second, the attack from below, insists that the rhetoricians
invocation of truth and justice is a sham, a technique for gaining power
whose success requires that its practitioners either fail to understand what
they are doing or deliberately conceal it. Gorgias stands between these two,
between Socrates and Callicles, and the question is, does he have any ground
on which to stand? Does the craft of rhetoric have a separate and legitimate
place in human life, in between pure reason and pure power?

II. The Lawyer


In many countries, lawyers are general practitioners who will take
almost any kind of case that walks in the door. In others; there has been a
tendency since the start of the 20th century for lawyers to specialize early in
their careers. In countries where specialization is prevalent, many lawyers
specialize in representing one side in one particular area of the law; thus, it is
common in the United States to hear of plaintiffs' personal injury attorneys.
Responsibilities
In most countries, particularly civil law countries, there has been a
tradition of giving many legal tasks to a variety of civil law notaries, clerks,
and scriveners. These countries do not have "lawyers" in the American
sense, insofar as that term refers to a single type of general-purpose legal
services provider; rather, their legal professions consist of a large number of
different kinds of law-trained persons, known as jurists, some of whom are
advocates who are licensed to practice in the courts. It is difficult to
formulate accurate generalizations that cover all the countries with multiple
legal professions, because each country has traditionally had its own
peculiar method of dividing up legal work among all its different types of
legal professionals. That is why lawyers need to possess good oral
communication skills in order to be effective in the courtroom and make
convincing arguments to judges. They must have good written
communication skills because they might have to write a variety of
documents, including legal case studies. They must also be good listeners,
able to follow complex testimony or to understand and analyze what clients
tell them.

Oral argument in the courts


Arguing a client's case before a judge or jury in a court of law is the
traditional province of the barrister in England, and of advocates in some
civil law jurisdictions. However, the boundary between barristers and
solicitors has evolved. In England today, the barrister monopoly covers only
appellate courts, and barristers must compete directly with solicitors in many
trial courts. In countries like the United States, that have fused legal
professions, there are trial lawyers who specialize in trying cases in court,
but trial lawyers do not have a de jure monopoly like barristers. In some
countries, litigants have the option of arguing pro se, or on their own behalf.
It is common for litigants to appear unrepresented before certain courts like
small claims courts; indeed, many such courts do not allow lawyers to speak
for their clients, in an effort to save money for all participants in a small
case. In other countries, like Venezuela or Portugal, no one may appear
before a judge unless represented by a lawyer. The advantage of the latter
regime is that lawyers are familiar with the court's customs and procedures,
and make the legal system more efficient for all involved. Unrepresented
parties often damage their own credibility or slow the court down as a result
of their inexperience.
Research and drafting of court papers
Often, lawyers brief a court in writing on the issues in a case before
the issues can be orally argued. They may have to perform extensive
research into relevant facts and law while drafting legal papers and preparing
for oral argument. In England, the usual division of labor is that a solicitor
will obtain the facts of the case from the client and then brief a barrister
(usually in writing). The barrister then researches and drafts the necessary
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court pleadings (which will be filed and served by the solicitor) and orally
argues the case. In Spain, the procurator merely signs and presents the
papers to the court, but it is the advocate who drafts the papers and argues
the case. In some countries, like Japan, a scrivener or clerk may fill out court
forms and draft simple papers for lay persons who cannot afford or do not
need attorneys, and advise them on how to manage and argue their own
cases.
Advocacy (written and oral) in administrative hearings

In most developed countries, the legislature has granted original


jurisdiction over highly technical matters to executive branch administrative
agencies which oversee such things. As a result, some lawyers have become
specialists in administrative law. In a few countries, there is a special
category of jurists with a monopoly over this form of advocacy; for
example, France formerly had conseils juridiques (who were merged into the
main legal profession in 1991).[34] In other countries, like the United States,
lawyers have been effectively barred by statute from certain types of
administrative hearings in order to preserve their informality.
Client intake and counseling (with regard to pending litigation)
An important aspect of a lawyer's job is developing and managing
relationships with clients (or the client's employees, if the lawyer works inhouse for a government or corporation). The client-lawyer relationship often
begins with an intake interview where the lawyer gets to know the client
personally, discovers the facts of the client's case, clarifies what the client
wants to accomplish, shapes the client's expectations as to what actually can
be accomplished, begins to develop various claims or defenses, and explains
her or his fees to the client.
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In England, only solicitors were traditionally in direct contact with the


client. The solicitor retained a barrister if one was necessary and acted as an
intermediary between the barrister and the client. In most cases barristers
were obliged, under what is known as the "cab rank rule", to accept
instructions for a case in an area in which they held themselves out as
practicing, at a court at which they normally appeared and at their usual
rates.

Legal advice

Legal advice is the application of abstract principles of law to the


concrete facts of the client's case in order to advise the client about what
they should do next. In many countries, only a properly licensed lawyer may
provide legal advice to clients for good consideration, even if no lawsuit is
contemplated or is in progress. Therefore, even conveyances and corporate
in-house counsel must first get a license to practice, though they may
actually spend very little of their careers in court. Failure to obey such a rule
is the crime of unauthorized practice of law.
In other countries, jurists who hold law degrees are allowed to provide
legal advice to individuals or to corporations and it is irrelevant if they lack a
license and cannot appear in court. Some countries go further; in England
and Wales, there is no general prohibition on the giving of legal advice.
Sometimes civil law notaries are allowed to give legal advice, as in Belgium.
In many countries, non-jurist accountants may provide what is technically
legal advice in tax and accounting matters.

Negotiating and drafting contracts

In some countries, the negotiating and drafting of contracts is


considered to be similar to the provision of legal advice, so that it is subject
to the licensing requirement explained above. In others, jurists or notaries
may negotiate or draft contracts.
Lawyers in some civil law countries traditionally deprecated
"transactional law" or "business law" as beneath them. French law firms
developed transactional departments only in the 1990s when they started to
lose business to international firms based in the United States and the United
Kingdom (where solicitors have always done transactional work).

Prosecution and defense of criminal suspects


In many civil law countries, prosecutors are trained and employed as
part of the judiciary; they are law-trained jurists, but may not necessarily be
lawyers in the sense that the word is used in the common law world. In
common law countries, prosecutors are usually lawyers holding regular
licenses who simply happen to work for the government office that files
criminal charges against suspects. Criminal defense lawyers specialize in the
defense of those charged with any crimes.

Earning the right to practice law


Some jurisdictions grant a "diploma privilege" to certain institutions, so that
merely earning a degree or credential from those institutions is the primary
qualification for practicing law. Mexico allows anyone with a law degree to

practice law. However, in a large number of countries, a law student must


pass a bar examination (or a series of such examinations) before receiving a
license to practice. In a handful of U.S. states, one may become an attorney
(a so-called country lawyer) by simply "reading law" and passing the bar
examination, without having to attend law school first (although very few
people actually become lawyers that way). In other states, the bar
examination can be very challenging, such as in California where only
42.3% of applicants passed the examination administered in February 2011.
Some countries require a formal apprenticeship with an experienced
practitioner, while others do not. For example, a few jurisdictions still allow
an apprenticeship in place of any kind of formal legal education (though the
number of persons who actually become lawyers that way is increasingly
rare).

Voluntary associations
Lawyers are always free to form voluntary associations of their own, apart
from any licensing or mandatory membership that may be required by the
laws of their jurisdiction. Like their mandatory counterparts, such
organizations may exist at all geographic levels. In American English, such
associations are known as voluntary bar associations. The largest voluntary
professional association of lawyers in the English-speaking world is the
American Bar Association.

Compensation
Lawyers are paid for their work in a variety of ways. In private practice, they
may work for an hourly fee according to a billable hour structure, a
contingency fee (usually in cases involving personal injury), or a lump sum
payment if the matter is straightforward. Normally, most lawyers negotiate a
written fee agreement up front and may require a non-refundable retainer in
advance. In many countries there are fee-shifting arrangements by which the
loser must pay the winner's fees and costs; the United States is the major
exception, although in turn, its legislators have carved out many exceptions
to the so-called "American Rule" of no fee shifting.
Lawyers working directly on the payroll of governments, nonprofits, and
corporations usually earn a regular annual salary. In many countries, with the
notable exception of Germany, lawyers can also volunteer their labor in the
service of worthy causes through an arrangement called pro bono (short for
pro bono publico, "for the common good").Traditionally such work was
performed on behalf of the poor, but in some countries it has now expanded
to many other causes such as the environment.
In some countries, there are legal aid lawyers who specialize in providing
legal services to the indigent. France and Spain even have formal fee
structures by which lawyers are compensated by the government for legal
aid cases on a per-case basis. A similar system, though not as extensive or
generous, operates in Australia, Canada, and South Africa.
In other countries, legal aid specialists are practically nonexistent. This may
be because non-lawyers are allowed to provide such services; in both Italy
and Belgium, trade unions and political parties provide what can be
characterized as legal aid services. Some legal aid in Belgium is also
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provided by young lawyer apprentices subsidized by local bar associations


(known as the pro deo system), as well as consumer protection nonprofit
organizations and Public Assistance Agencies subsidized by local
governments. In Germany, mandatory fee structures have enabled
widespread implementation of affordable legal expense insurance.

III. The Lawyer as a Chess Player


You often hear in chess and other sports that this player is more
talented but that player works harder. This is a fallacy. Hard work is a
talent. The ability to keep trying when others quit is a talent. And hard work
is never wasted. No matter what career you end up in, or even if you have a
dozen different careers, the hard work represented here today will never be
wasted. You being here shows that you have that talent and it will serve you
well no matter how you decide to make a difference in this world. Human
beings cannot upgrade our hardware, thats our DNA. But with hard work
we can definitely upgrade our mental software.
A beginner often wonders if he has what it takes to become proficient
at the Royal Game. The answer is that there are many aspects of intelligence
and personality that correlate with the potential to become a good chess
player. Almost everyone realizes that a lot of hard work will be necessary to
climb the ladder of chess success, and few want to put in many hours of
work with little prospects for reward. Knowing that you have some of the
requisite talents is always helpful in keeping up your spirits.

A.

The Game of Chess and a Chess Player


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A Chess game is a war between two medieval Kingdoms. In medieval


times, when Kingdoms were small, absolute monarchies, if the King was
imprisoned or captured the war was over. So it is in the game of Chess. The
game is finished when one of the Kings is captured. It may here be noted
that Chess is not necessarily a game of elimination but rather a game of
tactics. However, elimination of the opponent's pieces plays an important
part since by so weakening or wearing down your opponent the end is
hastened. Chess is a process of thought conditioned and limited by the
Institutes and Rules of the Game. The judgments of thought are certified or
visibly expressed upon the chessboard in movements of various forces. A
chess player is someone who plays the game of chess.
History of Chess
The origins of chess are not exactly clear, though most believe it evolved
from earlier chess-like games played in India almost two thousand years
ago. The game of chess we know today has been around since the 15th
century where it became popular in Europe.
The Goal of Chess
Chess is a game played between two opponents on opposite sides of a board
containing 64 squares of alternating colors. Each player has 16 pieces: 1
king, 1 queen, 2 rooks, 2 bishops, 2 knights, and 8 pawns. The goal of the
game is to checkmate the other king. Checkmate happens when the king is in
a position to be captured (in check) and cannot escape from capture.
Starting a Game
At the beginning of the game the chessboard is laid out so that each player
has the white (or light) color square in the bottom right-hand side. The chess
pieces are then arranged the same way each time. The second row (or rank)
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is filled with pawns. The rooks go in the corners, then the knights next to
them, followed by the bishops, and finally the queen, who always goes on
her own matching color (white queen on white, black queen on black), and
the king on the remaining square.
The player with the white pieces always moves first. Therefore, players
generally decide who will get to be white by chance or luck such as flipping
a coin or having one player guess the color of the hidden pawn in the other
player's hand. White then makes a move, followed by black, then white
again, then black and so on until the end of the game.
How the Pieces Move
Each of the 6 different kinds of pieces moves differently. Pieces cannot
move through other pieces (though the knight can jump over other pieces),
and can never move onto a square with one of their own pieces. However,
they can be moved to take the place of an opponent's piece which is then
captured. Pieces are generally moved into positions where they can capture
other pieces (by landing on their square and then replacing them), defend
their own pieces in case of capture, or control important squares in the game.

The King
The king is the most important piece, but is one of the weakest. The king can
only move one square in any direction - up, down, to the sides, and

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diagonally. The king may never move himself into check (where he could be
captured).
The Queen
The queen is the most powerful piece. She can move in any one straight
direction - forward, backward, sideways, or diagonally - as far as possible as
long as she does not move through any of her own pieces. And, like with all
pieces, if the queen captures an opponent's piece her move is over.
The Rook
The rook may move as far as it wants, but only forward, backward, and to
the sides. The rooks are particularly powerful pieces when they are
protecting each other and working together!
The Bishop
The bishop may move as far as it wants, but only diagonally. Each bishop
starts on one color (light or dark) and must always stay on that color.
Bishops work well together because they cover up each others weaknesses.
The Knight
Knights move in a very different way from the other pieces going two
squares in one direction, and then one more move at a 90 degree angle, just
like the shape of an L. Knights are also the only pieces that can move over
other pieces.
The Pawn

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Pawns are unusual because they move and capture in different ways: they
move forward, but capture diagonally. Pawns can only move forward one
square at a time, except for their very first move where they can move
forward two squares. Pawns can only capture one square diagonally in front
of them. They can never move or capture backwards. If there is another
piece directly in front of a pawn he cannot move past or capture that piece.
Promotion
Pawns have another special ability and that is that if a pawn reaches the
other side of the board it can become any other chess piece (called
promotion). A pawn may be promoted to any piece. [NOTE: A common
misconception is that pawns may only be exchanged for a piece that has
been captured. That is NOT true.] A pawn is usually promoted to a queen.
Only pawns may be promoted.
Check & Checkmate
As stated before, the purpose of the game is to checkmate the opponents
king. This happens when the king is put into check and cannot get out of
check. There are only three ways a king can get out of check: move out of
the way (though he cannot castle!), block the check with another piece, or
capture the piece threatening the king. If a king cannot escape checkmate
then the game is over. Customarily the king is not captured or removed from
the board, the game is simply declared over.

B.
Elements of Chess
a) Material

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Every piece has a value. As you know, Pawns are worth 1, Bishops
and Knights are worth 3, the Rooks are worth 5 and the Queen is worth 9.
This means that two bishops are worth 6 pawns which is the same as one
rook and one pawn. If you play carefully you can prevent your opponent
from capturing any free pawns or pieces while maintaining control of the
board. At an expert level or higher, one pawn can be the difference of
winning or losing a game. In the endgame whoever has most pawns is most
likely winning. However, material isnt everything, not even close.

b) Position
Unlike material & time, there is no way to quantify who has a better
position. However, there are many ways to subjectively evaluate who has the
better position such as: control over the center, how much space your pieces
have to move, how well your pieces are defended, and if your setup for
potential attacks against your opponent. Remember Kazims article on the
Smith Morra Gambit that shows the position is so important that sometimes
its even worth sacking a pawn (or even a piece) for a better position.
c) Time
If youre ahead on time, keep analyzing the board even after youre
sure you know your next move, just to be sure. If you see a better move
youll be glad you didnt jump the gun and you will still be ok on time.
Remember, the amount of time one spends looking at a move is called depth
for a reason; a deeper game is far more interesting than a shallow one.
C.

Traits of a Good Chess Player

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Several lists of applicable chess traits have been published, so I


thought it would be fun to give it a Novice Nook spin. I have separated the
aspects into three groups:
a) IQ Aspect
b) Physical Aspect
c) Personality and Emotional Aspects
a) IQ Aspect
Memory The ability to remember things is certainly a no-brainer,
insofar as being helpful for chess. First there is the obvious ability to retain
more chess patterns and what you know about them, including opening and
endgame knowledge, tactical positions and ideas, positional maneuvers. In
addition, there is also everything else you know about chess including
guidelines, how to handle a six-hour World Open game, and the information
in Novice Nook. The better the memory, the better you can store the
information and retrieve it quickly and accurately. It is also well documented
that memory is not as sharp when you get older, so age does degrade this
ability. Knowledge is not an ability, but it is the information you retain
better with a good memory. It is also worth noting that knowledge is not
correlated one-to-one with your playing strength; for example, a player who
reads more books and retains more knowledge is not always better than one
who has read much less. As one of my chess friends once said, Never
confuse ignorance with stupidity the corollary being Never confuse
knowledge with intelligence.
Spatial Relationships I call the special vision which enables one to
understand what is happening on a chessboard Board Vision. But the
general ability to process spatial relationships is more than just that chess
specific skill; it is the capability to see and/or imagine what is happening in
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two or three dimensions. An example of how this is tested would be the type
of IQ test question where they show you an unfolded cube and you are asked
to fold it in your head and select which of four folded cubes could be created
from the fold. The ability to visualize geometric patterns is valuable in chess
when you are trying to look ahead and imagine a possibly occurring
position. An example of an error using this ability would be a retained
image when you fail to see that a piece has moved off its square and you
visualize it doing something on a later move when, in fact, if that line were
actually played that piece would no longer be there!
Deductive Logic This is the If A implies B and B implies C, then A
implies C type of logic. In chess you need deductive logic to figure out
what is forced and what is not. For example, during analysis of a position
you need to be able to look at a move and deduce something like Because
of so-and so, if my opponent does not stop my killer move (or whatever),
then I can do this, so he must make move A or move B to prevent it or else I
win. A common deductive error would be assuming your opponent will
make a move that you think is forced when in fact another move is better. Of
all the skills in chess, I believe that this one is perhaps the most popularly
recognized by the general public. Your deductive logic is another part of the
thinking process that slows as you get older.

b) Physical Aspect
Concentration Playing chess correctly requires a lot of thought. The
better able you are to concentrate and focus your thoughts on the task at
hand, the better. If your mind is wandering even thinking about a mistake
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you made earlier in the game - that can only hurt you. Lack of concentration
detracts from your ability to perform from the task at hand, which is usually
finding the best move in the current position within the given time available.
Stamina This is the physical ability to sit and play without excessive
tiredness or fatigue throughout not just a long game, but possibly even a
long series of games in a tournament or match. One of the problems older
players have is lack of stamina; they get tired more easily. You can increase
your stamina by eating and drinking correctly before and during a long
game, getting proper rest, and entering the event in good shape. That is why
it is helpful to have an aerobic sport, like tennis, jogging, or swimming, to
augment your chess lifestyle these are beneficial for your non-chess
welfare, too.
c) Personality and Emotional Aspects
Nerves In the course of chess history, it has been stated about
several top level grandmasters that were not serious World Champion
candidates because they did not have the nerves for top-level play. Playing
chess for fun is one thing, but playing for your livelihood or your place in
history is quite another. It requires strong nerves to play chess at the
highest level, but having bad nerves affects your play negatively at any
level.

D.

Importance of a Chess Player

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An important element of critical thinking in chess is the evaluation


process where the strength of one's position is assessed. Beginners who play
chess place significant emphasis on material -- reasoning that "the player
with more material will win by sheer numbers". If only chess was that
simple. Material plays a central role in winning a chess game but many more
ideas are needed for a useful evaluation of a position. More advanced
players find a balance: included in their evaluation processes are the ideas of
central control, pawn structure, material, space, maneuverability, king safety,
initiative and development of pieces. The brain has internalized these values
allowing the player to make a reasoned judgment of which particular themes
are critical in evaluating his or her own position.Mathematicians have
estimated that there are approximately 10 to 50 possible unique games of
chess playable. Thus chess will never become just a repetition of previously
played moves. So how can a player possibly make a decision as to which
plan to choose with so many possible choices? Even with complicated
evaluative techniques, choosing the best plan can be very difficult. The chess
player must often must rely on intuition. The best chess players are often
those who have an acute feel or intuition for which move is correct. Intuition
is generally undervalued in educational terms but can be a very useful tool in
both problem solving and real life applications when the steps to solve a
problem are not easily apparent. Chess players are often considered
mathematically oriented and there are obvious similarities as chess is a game
of problem solving, evaluation, critical thinking, intuition and planning -much like the study of mathematics.

IV. Lawyer as a Rhetor

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Classical Rhetoric and the Modern Trial Lawyer


The average trial lawyer lacks time to read Aristotle, Demosthenes,
Cicero, or Quintilian. But most trial lawyers will not settle for being
average.
There is gold to be mined in Rhetoric, that dusty work of Aristotles,
along with the speeches of Demosthenes and the works of their Roman
heirs. Although these classical rhetoricians lived centuries ago, their
understanding of what makes a winning argument is timeless. Their
techniques and steadfast belief in the rule of law are continually instructive
and inspiring for modern trial lawyers. Spending time with the works of
these sages will not only improve your performance in court but also give
you a deeper appreciation for the rich history of our profession.
Appreciating the art of persuasion truly begins with Aristotles
Rhetoric. In it, Aristotle identifies three elements of argument: the speaker,
the argument, and the listener. He names the listener as the most important
component and develops a methodology involving three primary modes of
persuasion: ethos, the personal character of the speaker as perceived by the
listener; logos, persuasion by logic; and pathos, persuasion by emotion.
Successful rhetoricians will focus these modes of persuasion on their
listeners, Aristotle argues, for the whole affair of rhetoric is the impression
to be made upon the audience.
Aristotle observes what so many lawyers learn the hard waythat
audiences differ in attitudes, beliefs, and preconceived notions about the
matter at hand. Just as each receiver is different, each argument should be
unique, Aristotle insists. The capacity to match ones rhetoric to ones

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audience is well served by a sophisticated understanding of human nature,


habits, desires, and emotions.
It is essential to consider the key factors that influence the listeners
decision, including attitudes, beliefs, values, and personality. A person who
is biased against doctors may be predisposed to reject an argument that relies
on a physicians testimony. Deeply religious people may oppose the opinions
of a self-described atheist. Likewise, a juror who cries upon hearing an
assault victims testimony could be more susceptible to tear-jerking closing
arguments than a juror who rolls her eyes at emotional appeals. If such
assertions sound like common sense, you would be surprised how often
lawyers ignore the nature of their listeners and instead develop arguments to
suit the tastes of other attorneys.
Rhetoric reminds us of the importance of conducting due diligence on
the judges that hear our cases. It compels us to read a judges prior opinions
and writings, contact people familiar with the judge, observe the judge in
other proceedings, and, in some instances, conduct online research on the
judge. Such investigation will help you avoid arguing directly in opposition
to a judges preconceived notions or even prior opinions.
Most lawyers recognize the practical benefits of Law & Rhetoric;
their recognition that better rhetoricians become better lawyers carries with
it something more profound: rhetorical alternatives recognize students
power and ability to affect outcomes in their rhetorical communities, both
now, while they are law students, and later, when they are practicing
lawyers. From the rhetorical point of view, law students, law teachers, and

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lawyers are human actors whose work makes a difference because they are
the readers, writers, and members of interpretive and compositional
communities who constitute the law.
Although learning about jurors is more difficult than learning about
the judge, there are a number of effective ways to glean information about
them. When possible, obtain a jury list in advance of trial and research the
individuals online. You can sometimes prepare a jury questionnaire and
request that the court allow you to present it to jurors before formal voir dire
begins. In some cases a full voir dire is permissible; in such cases, how you
frame questions about jurors attitudes and beliefs becomes extremely
important.
Limited voir dire, in which counsel submits questions for the judge to
ask, is a valuable opportunity to reveal vital information about the jurors.
Jury consultants and facilitators can create a jury profile and help you
strike jurors who could harm your case. Mock trials can help you learn how
jurors are likely to react to your case, in whole and in part. Listening to the
mock jurors deliberate can provide crucial insight into how the real jury may
respond when it counts.
Your appreciation of the decision makers should inform not only the
overarching theme of your case, but also your development of that theme
the structure of your opening statement, the witnesses you select, the order
in which you call them, the questions you ask on cross and direct, and the
tone of your closing argument.
Aristotle believed that logos, or logical reasoning, should be of
primary concern when developing the substance of an argument.

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Understanding the rudiments of Aristotelian logic in the context of


persuasion is beneficial for three important reasons: Arguments are more
convincing when based on sound logic, understanding basic principles of
logic will enable you to build watertight arguments and avoid fallacies, and
you will be able to refute opposing arguments by identifying their logical
fallacies.
Rhetoric also makes clear that even a logically impeccable argument
will fail if the audience does not trust the speaker, for Aristotle viewed ethos
as the most important aspect of argument. He defined ethos as the character
of the advocate as perceived by the listener. What qualities will boost your
ethos? Integrity, intelligence, friendliness, sincerity, conviction, professional
appearance, and enthusiasm, among others. Aristotle identified integrity as
the most important of these. Admitting unfavorable facts, a bit of selfdeprecation, and demonstrating a sense of fair play can help win you points
for integrity, as will avoiding ad hominem attacks and extreme positions.
A healthy ethos will help you apply in court what Aristotle believed
was the third-most important component of advocacy: pathos, or emotion.
Aristotle recognized that effective advocates use emotion to provoke
listeners to identify with their causes (i.e., their clients). Applying Aristotles
lesson in court, trial lawyers work to humanize their clients and develop
arguments with moving stories and figurative analogies. Pathos is a
powerful force, and it is best to rely on it with moderation and always hand
in hand with sound reasoning. For Aristotle, the marriage of pathos with
logos, along with a high ethos, is the foundation on which successful,
listener- centered arguments are built.

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The only trouble with Aristotles Rhetoric is that it is a theoretical


text. To see theory in practice, turn to Demosthenes. He forcefully
substantiated his assertions with evidence and facts. He followed each
assertion with a presentation and conclusion, often using short, precise
sentences. He relied on figurative language, which works particularly well
when the comparisons made strike an emotional chord with the listener.
Cicero gave great attention to the arrangement or structure of his
speeches. In considering arrangement, Cicero recommends placing the
strongest points first, following them with weaker arguments, and
concluding with strong arguments. The doctrines of primacy and recency
we remember best what we hear first and lastspring from Cicero.
No review of classical rhetoric would be complete without mentioning
Quintilian. Persuasion was his aim and, like Aristotle, Quintilian gives
attention to knowing your listener, the temperament of the judge, and the
proper use of logic and emotion. He advises that assertions must be
supported by facts or law and underscores the value of charm. In other
words, he appreciates the importance of a well-timed smile, a laugh, a
courteous bow. He suggests that one begin an argument with a concise
statement crafted to draw in the listener.
Spending time with Quintilian, Cicero, Demosthenes, and Aristotle
will improve your advocacy skills.
A.

A Rhetor
From the Greek word orator.

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"Since Martin Luther King was the ideal rhetor at a critical moment to
pen the Letter it transcends the Birmingham of 1963 to speak to the nation
as a whole and to continue speaking to us, 40 years later."
How next can we define the rhetor? Essentially, he is a man skilled in
the art of rhetoric: and as such he may impart this skill to others, or exercise
it in the Assembly or the law courts. It is of course the first of these
alternatives that interests us here; for . . . the sophist qualifies for the title of
rhetor in this sense should one choose to describe him in purely functional
terms.
"Edward Cope recognized the cooperative nature of rhetorical
argument in his classic commentary on Aristotle, noting that the rhetor is
dependent upon the audience, 'for in ordinary cases he can only assume such
principles and sentiments in conducting his argument as he knows will be
acceptable to them, or which they are prepared to admit.' . . .
"Unfortunately, under the influence of the nominalistic
individualism of the Enlightenment, the neo-Aristotelian left behind the
community framework inherent in the Greek tradition to focus on the
rhetor's ability to work his will. This rhetor-centered approach led to such
oxymorons as considering a community destroyer like Hitler to be a good
rhetor. Whatever accomplished the rhetor's purpose was taken to be good
rhetoric, regardless of its consequences for the ecosystem as a whole. This
rhetor-centered approach blinded itself to the value implications of reducing
the criteria of rhetorical practice to mere effectiveness in achieving the
rhetor's purpose. If pedagogy follows this idea of competence, then the neoAristotelian teaches that whatever works is good rhetoric."

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B.

The Role of the Rhetor in the Humanist Paradigm of Rhetoric


"The humanist paradigm is based on a reading of classical texts,

especially those of Aristotle and Cicero, and its governing feature is the
positioning of the rhetor as the generating center of discourse and its
'constitutive' power. The rhetor is seen (ideally) as the conscious and
deliberating agent who 'chooses' and in choosing discloses the capacity for
'prudence' and who 'invents' discourse that displays an ingenium and who all
along observes the norms of timeliness (kairos), appropriateness (to prepon),
and decorum that testify to a mastery of sensuscommunis. Within such a
paradigm, while one does recognize the situational constraints, they are, in
the last instance, so many items in the rhetor's design. The agency of rhetoric
is always reducible to the conscious and strategic thinking of the rhetor."
"Plato shifted the meaning of sophia, wisdom. Prior to Plato, sophia
had the same wide connotation as the Hebrew hokma: 'To be sophos . . . is to
dominate one's activity, to dominate oneself and to dominate others. This is
why a carpenter, a doctor, a diviner, a poet, a rhetor, a sophist, and the like
could be labeled sophoi.' Anyone who learned a craft through apprenticeship
to a master had learned a form of sophia."

C.

Lawyer as Rhetor
There is current debate about whether judicial decision making is

based primarily on politics and ideology with a proposal from the middle
ground between formalism and realism. For legal education in particular, the

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rhetorical alternatives may serve as a strong counter to narrowly formalist


and realist perspectives and thus allow law students to find a better fit within
the legal culture of argument. Rhetorical alternatives look at how the law
works by exploring the meaning-making process through which the law is
constituted as human beings located within particular historical and cultural
communities write, read, argue about, and decide legal issues. Studying and
teaching law as rhetoric treats rhetoric not as tool or technique, nor even
as the art or craft of persuasion, but instead as an interactive process of
persuasion and argumentation that is used to resolve uncertain questions in
this setting and for the time being. Such treatment rescues rhetoric from
being used to provide a grab bag of literary devices, language tricks that put
a gloss on legal reasoning but add little of substance. Instead, it focuses on
the rhetorical process as being central to perception, understanding, and
expression.
As for rhetoric as a perspective, a way to develop a rhetorical gaze,
I suggest to students that effective legal interpretation and composition will
sometimes depend on their ability to see with new eyes and to observe from
different vantage points. In this portion of the course, students explore
different rhetorical approaches to invention and imagination: approaches that
can help them adopt different lenses, make the familiar strange, look from
the outside in and the inside out, and link abstractions to concrete images
and stories.
I think this recognition that better rhetoricians become better lawyers
carries within it something more important: rhetorical alternatives recognize
students power and ability to affect outcomes in their rhetorical
communities, both now, while they are law students, and later, when they are

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practicing lawyers. In their traditional guises, formalism and realism appear


to doom lawyers to lives of quiet desperation: if rules or politics
compel outcomes, the work of lawyers will have little effect. Rhetorical
alternatives cast doubt on such compulsion. Instead, they recognize a
constructive role for law students and lawyers because they acknowledge
that the law is always being interpreted and that interpretations are often
contestable. From the rhetorical point of view, law students, law teachers,
and lawyers are human actors whose work makes a difference because they
are the readers, writers, and members of interpretive and compositional
communities who together constitute the law.
But their power is not unrestrained. Unlike political realists,
rhetoricians suggest that there are reasonable constraints on what lawyers
argue and how judges decide and that the constraints come from the
rhetorical process itself. These constraints emerge from language, history,
and culture, and, in particular, from the norms and customs of judging and of
law practice.

Although rhetorical alternatives do not promise certain

answers, they can promise results that are, in Karl Llewllyns term,
reckonable they are certain enough that lawyers can make judgments
about their likelihood and appellate lawyers can feel comfortable charging
clients for their work.
Moreover, rhetorical alternatives may help prepare law students to
move more effectively between the law and life, between the legal language
of abstraction and their future clients words describing individual human
conflicts and dilemmas. If law school pedagogy carries the message that the
laws key task is effective translation of the human world using legal
categories, law students may find themselves poorly prepared for the

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realities of legal practice. The language of law school may even distance
law students from individual voices they will need to be able to hear.
D.

Rhetors in our Legal System


The answer to this question appears obvious: Simply put, lawyers are

rhetors. They make arguments to convince other people. They deal in


persuasion. Proposing that the law is a branch of rhetoric, James Boyd
White wrote, Who, you may ask, could ever have thought it was anything
else?

Others give the equally obvious, contrary answer: simply put,

rhetoric is not reality; it is based on emotion, not reason; on word tricks, not
logic.
E.

Law as Rhetoric
To sum up, studying the law as rhetoric allows students to take part

in the many-voiced and open-ended rhetorical process through which the


law is made. When students study the law as rhetoric, they are encouraged to
bring in pluralistic and complicating forces, including their own experiences,
values, and senses of themselves. Studying legal arguments as rhetorical
performances helps law students become more aware of the effects of
language and symbol use and meaning frames. This growing awareness
makes them more rhetorically effective speakers and writers. Beyond
improving their skills, engaging in law as rhetoric may help conjure and
channel students natural ability to imagine and invent, and it may enable
them to better listen to alternative views and to speak in their own voices.
Studying the law as rhetoric is essential to begin the complex task of legal
interpretation.
F.

Importance of Rhetoric

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Rhetoric also is essential for legal composition, perhaps even more


naturally so because rhetoric is the historical site of the tools and implements
of persuasion and argumentation. Moreover, the outcome of a legal
argument is inherently rhetorical. That is, it is rhetorical because any
agreement with the conclusion rests upon the ability of one proponent to
persuade another, or to persuade an authoritative decision maker, to read a
document or to understand a situation in a certain way.
Finally, studying the law as rhetoric immerses students in an
imaginative human endeavor that may be capable of bringing about change.
The rhetorical approach to imagining how things would look in
different lights and from different angles offers the opportunity to effect
change when reality favors the status quo. Looking into how reality is
constructed makes it possible for the lawyer to shape arguments about
individual circumstances that depart from the accepted narratives and
existing frameworks. Recognizing that the law is constructed by human
beings as they interpret, compose, and interact makes it possible for the law
student to imagine a voice and a place to fit within the legal rhetorical
community.
G.

Rhetoric as a Perspective on How the Law Works


From rhetorical analysis of arguments about racial discrimination in

criminal sentencing and prosecution, the class moves to discussion of other


links between rhetoric and culture, beginning with Amsterdam & Bruners
analysis of race and culture in decisions about public education and
continuing with the advocacy rhetoric of bell hooks. Your professional aim
is to present your case, whatever its merits, so that those with control over
economic and political forces will decide for your client, and you most
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succeed when you most prevail. You use your mind, as we used to say of the
Sophists, to make the weaker argument appear the stronger. But neither the
power of money nor the power of persuasion is a good thing of itself; that
depends upon whether it is used to advance or injure ones interest, and that
is no concern of yours, with respect to your client or apparently to yourself.

V. Conclusion
Like chess grandmasters, lawyers need to develop their skills in recognizing
patterns, developing strategy, and assessing the best movegiven the
circumstances. Grandmasters in chess excel in recognizing patterns and
analyzing the consequences moves might haveand then moving
accordingly. In trial, the analysis is similar, but the patterns are more varied
and complex. Lawyers have to analyze their opponents' moves, incorporate
the judge's moves, and determine their own moveswhile monitoring the
jurors' perceptions of those moves.
A schema is an image that is created to aid the process of thought or
persuasion: a synopsis or a diagrammatic outline. People have schemas for
everything that they have experienced. Lawyers have schemas for trial; nonlawyers do too. But non-lawyers' schemas are often informed by television
(hence the CSI effect). Chess players have schemas for chess patterns and
the consequences of their moves; grandmaster have more developed
schemas than do novice players. Our experiences shape our schemas.
Because our experiences can differ greatly, our individual schemas ofor
perspectives ona situation can differ greatly. You can more easily
recognize adverse perspectives, and deal with them more effectively when
you are aware that you too, are one of the chess pieces in the game.
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Creating a schema for a law caselike the grid of a chessboardwill help


an attorney visualize the steps he/she needs to take. By using his/her theme
to create a schema for the jurors will help him/her visualize how the
evidence fits together. It will give the lawyer a context for the facts and
allow him/her to use heuristics (investigatory speculations) to recognize the
pattern of what the case is really about.
The lawyer needs to set out his/her theme (subject/main point) of the case at
the beginning. He/she must use that theme to guide every move. Throughout
trial, as he/she brings out evidence and attacks the weaknesses in the
opponent's story, he/she needs to elaborate on his/her them. In closing, the
lawyer uses his/her theme to make the complex simple and the conclusion
self-evident. If he/she does his job well, he will deliver checkmate.
What law school needs is more immersion in the rhetorical process,
accompanied by more awareness of it and more reflection about it.
Rhetorical analysis shows us that law is a human exercise; that it is driven
neither by immutable truths . . . nor by arbitrary whims. Isnt it ironic that
after teaching students how to think like lawyers, we must remind them that
they will be practicing law as human beings? In the first year of law school,
most teachers find some students who just dont get it; these students are
unable to focus on the issue, and they insist on bringing up irrelevant
information. Engaging in law as rhetoric reminds us that there is more to
the issues we face than legally relevant information, that practicing law is
a rhetorical activity undertaken by individuals using inherited language and
symbols to build and transform their culture and community.

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VI. References
Digitalcommons.pace.edu
Americanbar.org
SG.answers.yahoo.com
Long, Eleanor (1991). Secrets of the Grandmaster. Australian- Mathematics
Journal, 2, 24-27.
Marjoram, D (1987). Chess and Gifted Children. Gifted EducationInternational, 5, n(1), 48-51.
Palm,

Christine

(1994).

Scholastics:

Chess

Improves

Academic

Performance.
Seirawan, Yasser (1994). Scholastic Chess - Feel the Buzz? Inside Chess, 5,
n(4), 3-4.
Anthony T. Kronman (1999). Rhetoric, 67 U. Cin. L. Rev. 677, 691.
Elizabeth Mertz (2007). The Language of Law School: Learning to Think
Like a Lawyer.

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