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. Person certified as trained in

the theory and practice of law, and licensed to 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 rhetorician’s passionate

appeals. The second, the attack from below, insists that the rhetorician’s

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?

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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.

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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

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(usually in writing). The barrister then researches and drafts the necessary

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 in-

house 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

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be accomplished, begins to develop various claims or defenses, and explains

her or his fees to the client.

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.

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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.

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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

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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.

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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

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, that’s 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

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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

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

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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)

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.

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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

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 other’s weaknesses.

The Knight

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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

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 opponent’s

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

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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

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 isn’t 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 Kazim’s article on the

Smith Morra Gambit that shows the position is so important that sometimes

it’s even worth sacking a pawn (or even a piece) for a better position.

c) Time

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If you’re ahead on time, keep analyzing the board even after you’re

sure you know your next move, just to be sure. If you see a better move

you’ll be glad you didn’t 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

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

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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

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

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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

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

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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

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

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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

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 Aristotle’s,

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 Aristotle’s

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.

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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 way—that

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 one’s rhetoric to one’s

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 listener’s

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 physician’s testimony. Deeply religious people may oppose the

opinions of a self-described atheist. Likewise, a juror who cries upon hearing

an assault victim’s 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 judge’s 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 judge’s preconceived notions or even prior opinions.

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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

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.

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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.

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 self-

deprecation, 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

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listeners to identify with their causes (i.e., their clients). Applying Aristotle’s

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.

The only trouble with Aristotle’s 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 last—spring 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

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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.

"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

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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 neo-

Aristotelian teaches that whatever works is good rhetoric."

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."

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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

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

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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 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 Llewllyn’s 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.

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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

law’s key task is effective translation of the ‘human world’ using legal

categories,” law students may find themselves poorly prepared for the

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

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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

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

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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 & Bruner’s

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

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 one’s 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 move—given the

circumstances. Grandmasters in chess excel in recognizing patterns and

analyzing the consequences moves might have—and 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 moves—while 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; non-

lawyers do too. But non-lawyers' schemas are often informed by television

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(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 of—or

perspectives on—a 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. 

Creating a schema for a law case—like the grid of a chessboard—will 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.” Isn’t 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,

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most teachers find some students who “just don’t 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.

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 Education-

International, 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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