Wednesday, April 7, 2010

Week 9: Back to "On Rhetoric"


What did you make of our return to Aristotle?

30 comments:

Luke Lawrence said...

I found this week's reading to be a very interesting discussion of how a speech should be organized, and the goal of each section of the speech. I especially found the methods of countering an opponents argument interesting. The discussion in chapter 15 about recrimination sounded like strategies for impeaching a hostile witness. Showing that the witness had been involved in the same conduct that the accused allegedly committed, or that the witness is known for lying (has been convicted of purgery) are common tactics is neutralizing the credibility of a witness.
I also thought that the point in chapter 16 about the use of narrative in a judicial speech echoed what I had been told in the past about making sure your case has a moral hook. If you are advocating or acted in furtherance of a cause that the audience believes is just, then you are far more likely to gain their sympathy than one who acted selfishly.
The discussion about interrogation sounded a lot like a lecture on how to cross examine a witness. It is interesting, though, that the interrogation described by Aristotle is the accused questioning his accuser, or the accuser questioning the accused. We obviously have lawyers cross examine witnesses (whether they be the accused, accuser, or someone else) now. Even so, the warning not to ask the witness to draw the final conclusion for you is very sound – it is far too easy for them to conclude the opposite of what you want, and justify it.

April Holland said...

I felt that this week’s reading brought everything together. As Aristotle goes through how to present your argument in a judicial setting he brings together the concepts of logos, pathos, and ethos. I enjoyed reading Aristotle’s structure of speeches with having the beginning of the speech and then getting into the heart of it, followed by refuting or counteracting your opponent’s argument or character/credibility, and then the conclusion. In discussing logos, Aristotle mentions that there are two parts to a speech: what the subject is the speaker is talking about and then to demonstrate the argument. He then continues that the speaker needs to demonstrate a proposition and then prove that proposition. When organizing and constructing the speech, one needs to essentially have a point or theme and join what one is saying with that theme. Aristotle also gives his ideas about how to organize an argument when refuting what one has just said: he says to put the attack at the end of the speech so that the hearers will be able to remember it In discussing pathos, Aristotle focuses on the attentiveness of the audience throughout the speech. A speaker wants his audience to view what he is saying as important throughout every aspect of the speech and has meaning to each hearer. Thus, appealing to the audience emotions allows for the audience to care about and relate to what the speaker is trying to prove. Aristotle also discusses that in the conclusion of the speech once the facts have been laid out, the speaker needs to lead the audience into an emotional reaction. This strategy would seem to be effective in the courtroom because once an attorney does his closing argument, the attorney ultimately wants the jury to rule in favor of him and his client. By appealing at the end of the argument to the jury’s emotions, the jury is not only more likely to remember the argument, but it will have meaning to each and every jury member. In discussing ethos, Aristotle also gives the example we discussed in a previous class about “Elias, happy city.” Although the speaker may be considered an outsider to his audience, the speaker can still make observations in the setting he is in and be able to establish his credibility with the audience at the outset of the speech. Moreover, Aristotle suggests that the speaker should not only introduce himself, but also his opponent as a person of a certain character so that the audience will view the speaker and his opponent in this way, but this must be done inconspicuously.

Ashley Yearick said...

I also thought this was a great reading, full of useful tips and definitely one of the more understandable Aristotle assignments. I especially enjoyed the discussions on cross and closing argument (epilogue).
Starting with the epilogue, Aristotle was exactly correct when he stated that the starting point of the epilogue “is to claim that one has performed what one has promised.” There is no denying that it can be very difficult to streamline a case from start to finish. A lot happens during trial, but it is absolutely critical during closing to be able to refer back to the opening statement and make good on what you promised the jury. Being able to tell the jury at the very end that exactly what you told them was going to happen, happened, is a very powerful thing. Now, obviously you can’t predict the future when you are delivering an opening but you can absolutely have a superior grasp of the facts, the case and a good idea of what opposing counsel might do. On that same note, it is critical not to bring in new thoughts, facts or evidence has not been proven during trial. Instead the epilogue must only be a “recapitulation of what has been shown.” Not only will you draw an objection, but you will lose credibility with the jury quickly if you start referring to things the jury has never seen or heard.
I also thought it was interesting how Aristotle suggested the epilogue be constructed. His recommendation was to lay out the facts and the argument (specifically WHY these things are important, and not only to the case and your client, but to the jury personally) and then to draw in the juries emotions. I have always been taught to lead with a story, in first-person, and then get into the facts and evidence of the case, but I think that Aristotle was right when he said the jury has to be ready for the emotional message. Only once a reasonable, logical and accurate case has been established is the jury ready to see the underlying humanity of your argument.
The last point I would like to make goes to credibility generally. Aristotle spoke about it at some length in this assignment and of course we have examined it closely in other readings, but I don’t think enough can be said about the importance of building a credible relationship with the jury. Whether you are questioning the jury during voir dire, delivering an opening statement, conducting witness examinations or giving one hell of a closing, the most precious thing you have is your own credibility. As Aristotle said, people believe in credible, reasonable, individuals. You lose credibility with the jury and no set of winning facts will bring you success.

Drew Pate said...

I enjoyed this reading, and thought it was great for a final assignment before we begin working on our closing arguments. Chapter 19 was particularly helpful for showing the structure and purpose of a conclusion.

I really liked Chapter 13 because it is always interesting to learn that an idea has its roots in something so old. We’ve been talking about the beginning, middle and end as the necessary parts of a story for the past few weeks with our other reading. Aristotle says pretty much the same thing in Chapter 13 with the prooemion, proposition, proof, and epilogue. It was also very helpful whenever Aristotle distinguished between judicial speech and other forms. So, in a closing, we can follow this same structure.

I have never had to do a closing argument before, so I have no idea if there is a general time length that we should stick to. I’ve seen a few in court and they all varied in length quite a bit. Aristotle seemed to say, take as long as you need, but no more; don’t waste time. This sounds good in theory, but I have no idea how practical it is. I’m guessing the jury and judge are worn out by the end of the case. So the general rule seems like it would be short and sweet to me. There probably is no good general rule with respect to time. It is kind of like writing a paper. We rarely ever get page requirements anymore because the professor or whoever just says: “It should be as long as you need to make your point.”

John Brennan said...

Aristotle’s mention of prosecutors saving that attack for the rebuttal reminds me of watching cases in Dallas. Aristotle said the attacks are saved for the end to make them more memorable; however, I think there was more to it than that. The prosecutors often used the first part of closing to go through the charge with the jury. After that, they’d sit down. Defense counsel would stand up and give the entire defense closing. Then, the other ADA would argue the case and address what the opposing counsel brought up. There was seldom a closing like that which is done in a civil trial. Further, Dallas ADAs split up everything. The person assigned to the case gave the opening and “rebuttal”. The person sitting second chair did the voir dire and first part of closing. I think the reason Dallas ADAs operated like that was to deprive the defense attorney of being able to respond to more than the opening statement and evidence. The ADAs were able to get the last word by forcing the defense attorney to guess as to what would be said in the true closing and capitalize on the element of surprise.

Kim Gee said...

I think you can take the lessons about the different parts of a speech and apply it to the opening, closing, or the entire case as a whole. For instance, the case as a whole has an introduction (the opening statement), the presentation of the facts and arguments (the evidentiary stage), and then the conclusion (the closing argument).

I learned many of the things Aristotle talks about in Practice Court. I think the most interesting chapter for me was Chapter 15- how to rebut an attack against you or your client. In practice court I was on the defense side of the case the majority of the time. It was the side my partner and I enjoyed the most. I wish we would have had this list of rebuttal arguments handy when we were trying to come up with our theme and story.

One of the ways Aristotle listed to rebut an attack was by praising the accuser in order to find fault with him. One example Aristotle gave was if the accuser and the defendant both had a motive, that the defendant should praise the accuser and then point out that the accuser’s motive was more evil than the defendant’s. Aristotle seems to think that this tactic is morally wrong. He said “such speakers are most artful and most unjust; for they seek to harm by saying such good things, mingling them with the bad.” I disagree. I think this tactic was the most inventive and intriguing. No human is perfectly good or perfectly bad- we all have our faults and here the defense just uses the accuser’s faults to ‘win the day’ without coming off as directly attacking the accuser. Sometimes it’s important not to directly attack your accuser, especially if the accuser is very sympathetic like a mother of a dead child or a surviving spouse. I wish Aristotle would have given a more concrete example of how this works.

sameerk117 said...

I would be lying if I said I was not dreading going back to Aristotle this week. However, I was pleasantly surprised. I really did enjoy the reading and appreciated the direct application.
I could have used some of Aristotle’s advice about focus and structure during my story telling exercise. I got so caught up pathos/logos/ethos I probably did not organize as well as I could have. I did not think my story was confusing by any means, but I think organization could have helped avoid some of the constructive criticism I received. After critiques, I left wondering if I really “proved” or demonstrated exactly what I wanted to during our first exercise. I chose to tell my story from a third party perspective to set off an emotion. However, at the end, I realized I may have drifted too far away and failed to really show a true perspective/focus leaving my listeners confused. Not necessarily confused on the subject matter, theme, or purpose, but on the perspective. I feel like this could have been avoided by using some of Aristotle's advice from the early chapters of this week's reading. For example, reflecting on my story, I feel like I did not get the most out of my introduction. I went into the story telling exercise wanting to simply build my credibility. Accordingly, I did not build a strong foundation or give any true perspective to channel my listeners.

The later portions of the readings made me wish I had some trial experience. I have assisted with one civil trial and have not yet taken PC. As a result, I don't think I could appreciate the tactics described. I did however find myself agreeing with Kim when she disagreed with Aristotle’s feelings toward making your client’s motives look better than another defendants (even when both are poor). Maybe for Aristotle it was a moral issue advocating for a lesser evil, but I feel like this could be effective.
Overall, I enjoyed the advocacy tips/tricks discussed and look forward to applying them (once I understand them a little better after lecture) in our closing arguments. I definitely am looking to improve on the first exercise, and I feel like this reading has provided me the opportunity to pinpoint a few aspects to work on.

Travis Phillips said...

As some of the others have stated, I agree that these chapters tie together what Aristotle has said elsewhere. I had difficulty, however, following everything that Aristotle said—it seemed as if he would make a very direct, substantive statement, and then go into an aside that was much less meaningful. For example, in Chapter 14, Aristotle specifically addresses judicial introduction and states that “the most necessary and specific function of the prooemion is…to make clear…the purpose,” of the speech—and then he spends the next two paragraphs addressing what appears to be an entirely different form of introduction.

This highlights what I believe may be the greatest difficulty I have with Aristotle—he focuses so much on the form of the argument that he seems to loose sight of the point. We all know, from Aristotle’s earlier chapters if nothing else, that all narration and argument boils down to a thesis that you put forward, evidence with which that thesis is supported, and conclusions drawn therefrom. Acknowledging that Aristotle is writing a manual on rhetorical techniques, he seems to loose sight of the purpose of techniques—putting forward a conclusion and convincing an audience of that conclusion. For example, in Chapter 16 Aristotle discusses Judicial Narrative—he advises that narration ought to be indicative of character, that actions should be spoken of in the past tense except to elicit indignation or pity, and that a defense narration can be shorter since time should not be wasted on anything that does not contribute to the defense.

This is all terrific advice—except when you need to “waste” time on details that do not truly contribute to the defense but act to catch the attention of the jury, or need to speak in the present tense to place the jurors in the shoes of the defendant, or if your client is well known for having a terrible character that does not bear on the issue that brought litigation.

My problem with Aristotle is that I think he becomes so caught up in his analysis of the techniques of rhetoric, that he does not draw the connection between those techniques and the ultimate goal—catching the attention of the audience and bringing the audience over to the point of view that you want. This may be a simple, obvious goal—but I can’t help but believe that it should be the foremost consideration one has in preparing an oration, rather than a set of techniques.

Jennifer Salim said...

If I could sum up these chapters in two words, it would be, “Show me.” Aristotle continually stressed the importance of showing the jury through ethos and pathos why they should believe you. For example, he wrote that, “It is ineffective after stating something not to demonstrate it” and in chapter 14 discussed that you get a hearer to follow you by taking their hand in the beginning and leading them through your story rather than telling them what to do. The speaker does not perform the function of an adviser but guides the listeners by showing them an injustice.

While this section was about structuring our argument, I think that it was much more ethos than logos based. Aristotle even stated that “seeming virtuous is better than an exact argument.”

I really appreciated his tips for the defendants. For example, the defendant must first counteract the attack to remove whatever hinders his case. This is a great reminder that your listener will have trouble believing and focusing on you when they have just been told how wrong you are. You have to get rid of that static and noise before you can get them to focus on your message. We also learned that whether or not the audience is attentive is because for them, the subject is unimportant, means nothing to them personally, or is distressing. This is such a great reminder that what is important to us might not matter to a jury that is being forced to be there. So we have to MAKE it matter to them. We have to appeal to their emotion and SHOW them why they care.

It also made sense that the defendant’s narration can be shorter because as defense you only have to address what is not agreed on; more or less “poking holes” in the other side’s argument. Too often I think the defense takes on a higher burden than necessary. Rather than merely refuting guilt (which is all that is required) it is tempting to try to prove the other side’s fault or create and prove an alternative story. This is not necessary. Instead, we just have to prove a contradiction; which we learned is often best done through interrogatories.

Lastly, I think Aristotle was trying to stir the pot between Professor Osler and Professor Glore when he stated that speaking in a deliberative assembly is more difficult than a law court because one speaks to the future and the other to the past. I disagree because we are also asking our jurors to take action and in a sense, change the future. Although, I do see his point that in law you are proving the past and in assembly, you are trying to assure the future.

John said...

It was not difficult to transition back into Aristotle this week because as one of my colleagues stated, it brings everything together. Finally, ethos, logos, and pathos take form and become parts of a story.

I particularly enjoyed both chapter 14 and 18 this week. In Chapter 14 when Aristotle discusses introductions he tells us to start with what we know. A writer should begin with what “best takes his fancy, and then strike up his theme and lead into it…” This is very helpful practical advice. I have always struggled with introductions. Often, I will write the rest of my argument and write the introduction last because they are that difficult for me. I appreciate the ancient wisdom of Aristotle’s tips.

I also laughed when I read Aristotle’s statement that, “Introductions are popular with those whose case is weak…” I remember Professor Counselor, passing on a similar version of that wisdom to me when I was on his mock trial team. He explained why the strongest advocate presents closing argument and why you allot the most time for the closing as well. I also remember Professor Ryan saying that when your team gets to the final rounds of a moot court competition you always want to choose to argue for the Petitioner. This is because in close rounds between equally gifted speakers, the round is won or lost on rebuttal. It is how you finish that matters.

Finally, I enjoyed Chapter 18 on Interrogation. Aristotle talks about the importance of drawing distinctions rather than being curt. When it comes to the art of asking one final question to land your opponent in absurdity none was greater than Socrates. Socrates was the master of interrogations and Plato was his apprentice. Likewise, Aristotle was Plato’s apprentice. It is clear that Aristotle speaks from a place where his words have been practiced and are not just intellectual theories.

William King said...

In reading Aristotle’s outline of rhetorical tools, I can’t help but think how these kinds of strategies pop up in day-to-day encounters. Chapter 15 is a good laundry list of defensive tactics we might all employ. “Officer, I wasn’t speeding THAT much” or “Officer, I was just tired after a long day or work and I just wasn’t as attentive to my speed as I should have been, cut me some slack!”

I think crafting a conclusion is the most difficult aspect of rhetoric because it’s a synthesis of everything that came beforehand. Introductions, as Aristotle said, are best kept short or to the point unless you aim to distract from the issues. That doesn’t seem like much of a difficult command in most cases. The conclusion, on the other hand, is prone to being less tidy because it deals with so much – building or destroying ethos, minimizing or maximizing the facts presented, exciting a certain emotional response, and then the summation. That’s a lot to do.

I think that the most important lesson I gained from the closing chapters is that through all of this, it’s important to remind the audience why you said and (tried to) proved something. This is a weak point for me: I know what it is I am trying to communicate, but I forget that others may have no clue or think something entirely different. It’s a valuable reminder to tie it all together effectively and clearly. Tips on how to compress all of this would have been welcome though.

Phil Bean said...

The first thing that struck me about this week's reading was "Wow, I forgot how hard it was to read Aristotle." The second thing that struck me was how much time he spent discussing the "Prooimion", or the Introduction of a speech. He basically said that there were two parts to a speech - the subject of the speech, then the argument. It seemed pretty obvious, but it does make sense - argument without a preface of what you're looking for is not persuasive.

I figured the discussion of the introduction would be short, but it wasn't. Aristotle seems to realize that the intro should be short - perhaps just a sentence. But, the amount of time he spends discussing it shows how important it is to him. He also gives good advice on the different types of introductions you can make. You could praise the audience, you can set the tone for the speech itself, you can preemptively reply to an attack, etc.

Meeting the prejudicial attack was interesting, because it integral to our work as lawyers. The law is all about fighting back and forth, and it is important to preemptively meet an attack so as to soften the blow. Aristotle says you can counteract a prejudicial attack by meeting it with unpleasant suspicion, which could be a good way to do it. Or, as he says, you may choose to deny the parts. My favorite, though, was his plan to talk nicely about the other side, seemingly saying how good their argument is, then slamming it down with an obvious problem that they have. I've found that to be particularly effective, because it works to disarm the jury into thinking you are nice, and appreciate the opponent, but you just can't agree with the opponent because of a flaw in their argument.

Michael Bernick said...

Well that was a beating.

I was not looking forward to returning to Aristotle and while this reading was informative, I found it more painful than past chapters.

The line “speaking well is not a matter of rapidity or conciseness but of moderation” struck me. The best speakers cleanly convey their message, but still include some human imperfections. This helps the audience relate and builds ethos as the speaker seems comfortable and conversational about the topic. The moot court finals this weekend exemplified this. All four advocates had their own speaking style to convey the dense arguments, but all four kept a conversational tone. This made exuded confidence and made the audiences and judges feel like the advocates were talking with them and not to them.

I thought the chapter on interrogations was interesting, especially the line about interrogating when “an opponent has said one thing and, if the right question is asked an absurdity results.” My boss last summer would always include three or four questions in his depositions that the person could not answer without injuring their cause. For example, he would ask the employer defendant whether they believed in mantra “safety first.” The employer was stuck. If they said, “yes” then my boss would follow up with questions about why they never spent money on safety equipment. If the employer answered, “No” then they would look ridiculous to the jury.

Goodbye, Aristotle.

Travis Bragg said...

I was fascinated by this week’s assignment and how much of Aristotle’s case theory and argument style is present in the courtrooms of today. The idea that a speech or argument has two parts, stating the case and proving the case – okay, so that one is neither deep nor truly fascinating. The discussion on prejudice – how to utilize it and how to counterattack against it – reminded me of several conversations with Professor Wren on how the Plaintiff must focus on the Defendant’s wrongdoing. Creating in the jury a sense of anger against the Defendant goes much further in a damage award than does feelings of sympathy for the Plaintiff. His division of the proof was almost eerie. Although it may seem as logical to us as the two parts of the argument, it was still interesting to see him lay out the order of proof just as it would be in a tort’s case – the action, the injury, the level of injury, and then any justification by the acting party for what they did. The theory on interrogation was similar in many aspects to what Irving Younger spoke about in cross-examination techniques. It simply comes down to one fact question that leaves the Defendant only two choices – give the answer you seek or sound absurd and dishonest. Finally, the discussion on the epilogue is analogous to closing arguments. I personally thought the quote was a fitting end to the book as a whole – that is was more than just an instruction to the jury, but rather an instruction to the reader / listener of Aristotle’s book. “I have spoken. You have listened. You have the case. You judge.”

Catherine Hoyer said...

One thing that I really like about Aristotle is that he takes complicated things and brings them down to their simplest form. While I have sometimes thought he oversimplifies just a bit, for the purpose of teaching, I think it is very helpful. The thought of making some grand speech can be daunting, but then here comes Aristotle who tells us that it really just has two parts. And suddenly, it makes it feel very doable. If I have done my job and researched the topic well, I can come up with a statement of the case and I can argue my position.

I really liked in Chapter 14 when Aristotle analogized the beginning of a speech to a prelude in flute music. I love listening to classical music and the passion that you can feel through the music. I just thought it was a unique way of thinking about the beginning of a speech, but it helped me to understand how the speaker can and should portray the same passion that musicians are able to portray to their audiences. One example of an opening that Aristotle gives is what the lawyers of the time used: “with appeals to the audience to excuse us if our speech is about something paradoxical, difficult, or hackneyed.” I actually saw this approach used in a court case that I observed last quarter. The attorney didn’t use those exact words, but he started his closing by essentially apologizing for any words that he used that had been offensive (which was weird because it was a pretty plain vanilla breach of contract case). I don’t think this approach went very well for him. He seemed to immediately lose the jury. So this advice by Aristotle may not work with today’s audiences.

I loved what Aristotle said in Chapter 16 regarding the need for moral purpose. That is something that they really emphasize in PC. And, I personally have come to understand that it is important. During PC I served on a bunch juries, and even as a law student who knew that the law favored one side, unless that side showed me a moral purpose behind my decision, I had a hard time voting for them. I can imagine how much more important it must be for the average juror. In fact, just today I was talking to a friend who recently served on jury duty, and she was telling me how important it was for her to feel like she had accomplished justice in the decision that they made.

Vince Ortega said...

A few points that particularly stuck out to me and re-framed some of the lessons that we learned in PC were the ideas of putting your attack at the end of your speech and weaving emotions and themes in throughout your speech.

Aristotle's idea of putting your attack at the end of your speech seemed to run counter to what we were taught about our "speech" as a whole in a trial, though it's possible that I just viewed it differently. I kind of thought of the opening statement as the first opportunity to go on the attack and set the pace/tone of the story that will be told throughout trial. I don't mean that one should always immediately come out with guns blazing and start accusing right off the bat, but I do mean that opening statement is often the place that the trial is won and therefore the perfect setting to mount an attack and establish a theme. Actually, the more I think about it the more I am able to see a connection between the opening and closing as the beginning and end of the same story and not separate portions of the "production". The closing should, as Aristotle points out, incorporate your theme and emotion so that the jury will easily HEAR what you have to say. It is essential that you allow them the opportunity to "hear" you because it is in this portion of the story that you will be giving those who are already on your side, the tools they need to argue and persuade those who aren't, to vote in your favor. If you are able to seamlessly weave in emotion and essentially give them a pep talk and the gumption to stick up for the right side, for your side, then it will make it much easier for them to commit themselves to your cause and emotionally argue it themselves with all the ammunition, or elements of proof that you have given them.

I've heard countless times over the past year that the most important speech in a trial is not conducted in a courtroom, it's done in the jury deliberation room, when the dominant jurors convince those who may be wavering of what to answer. Because of this, I can see that attacking the other side and raising the emotion of those folks in the box who are on your side, is essential to your success.

Jonathan Silko said...

I really liked this reading. I tend to lose sight of the structure when I am devising an argument. Too often, I just get going on a topic and come to fifteen minutes later far down some rabbit hole. For example, when I took AAP and had to compete in the intra-school moot court competition, I had to make a conscious effort to write out my argument in a manner like Aristotle describes. I like the way he lays it out because he keeps it very simple. There is no requirement of any eloquence or verbosity, simply state your position and defend it. It’s hard sometimes to keep in mind that even complex legal arguments can and should be broken down into something this simple.

Hunter Lewis said...

After reading this section, I was surprised to find that I actually understood Aristotle for once. The layout was simple and his points were broken down into smaller chapters that made the reading easy to follow and more interesting than those in the past.

Aristotle spent a lot of time breaking down each element of a good speech to prove that each section has a purpose. I am reminded of what was harped over in PC in that you cannot get to a judgment without putting on evidence. As young lawyers we are so quick to want to argue points to the jury in our opening and questioning of witnesses, but that is not the time to do so. We must lay down the foundation of the story using narratives that the jury can follow, and then conclude the whole case in our argument.

One of the more interesting points Aristotle touched on was the use of "interrogation"as he called it, which realistically seemed more like an impeachment of a witness. And while there are various ways to go about interrogating a witness, Aristotle stays true to the commonality of the craft of rhetoris by saying that you must do what works for you as a speaker, and not attempt to use another's form. While I do try to follow examples of those who teach me, it has become apparent that the best way to craft an argument, whether it be closing or opening, or a cross examination, is to use a style that suits my personal strengths. Ultimately Aristotle and I can agree on this. I am just so happy to be done with Aristotle and his confusing book!

Kristin Postell said...

Reading these chapters made me very curious about what a trial in ancient Greece might look like. The examples that Aristotle gave seem to be phrases I could walk into a courtroom today and hear counsel saying. I also realized how important it is to be careful of the way you construct your sentences to convey your message appropriately. My favorite chapter was Chapter 18. Aristotle gave very effective advice on how to set up a witness and even how to avoid being set up yourself. Aristotle seems to condone Wren's cross-examination method of using "undeniable truths" to lead a witness to agree with your case. In Chapter 17 Aristotle talked about where to put refutations in a speech. In PC we learned that these are the "thorns of your case." We learned that we should talk about our case's weaknesses before the other side had a chance to so that we could dampen their arguments. It was also important to talk about them in a way that made them sound good. This reminds me of when Aristotle says you should balance a wrong with something honorable as a way to refute.

It is interesting to me that Aristotle begins by saying there are only 2 necessary parts: statement and proof. He adds that the most you should add to that is an introduction and conclusion. Aristotle stresses how important it is to tell people what you are going to tell them, tell them, and then tell them what you told them. Introductions are necessary so that people can keep in mind the goal of your speech and conclusions are necessary to remind them of what you accomplished in your speech. Aristotle is giving the same advice that teachers and professors everywhere are proclaiming to their students. It must be true if it has been taught for thousands of years.

PETE said...

Great assignment. It really did tie together everything we read earlier.

Chapter 18- Ed Cloutman did a great job of executing the points of this chapter during a mock trial competition earlier this quarter. He started by saying, "Let's talk about some things I think we can agree on." Then he listed three general truths that the witness on cross simply could not disagree with. After establishing the generalities, he used them to show the jury that the witness' actions went against what even the witness agreed was the proper standard. It was the first time I had seen a cross done that way, and I thought it was very effective.

Ch. 19: I saw this put to use during the moot court rounds I judged. The emotional/public policy arguments were usually saved as the advocate's last point. I remember doing the same thing when I competed. I would guess that those types of statements have more of a persuasive effect on a jury and not so much on the judge(s).

Ch. 15: I learned the most from this chapter. Like other people have said, it's amazing that something written so long ago can still be so useful today. After each point I would find myself thinking, "Ohhhh, that's a good way to do it!" As of right now, I'm thinking it would be a good idea to review Aristotle's advice when I prep for PC exercises.

Ch. 14: PROAULION! I can't wait to use that after I go to my next symphony and impress the orchestra crowd.

Aristotle- you were tough, but not as bad as Isaiah.

Nick Chu said...

Over the course of this quarter we have looked towards the structure of a speech in a micro sense. We looked at elements of what makes a persuasive speech good: ethos, pathos, logos, storytelling, etc. Each one of these elements is a discrete unit in a speech. Each one could be compelling to a listener on its own, but it is never as compelling as the combination of all the units in one speech. This week’s reading teaches us how to combine all those units effectively into one complete unit. This week we look towards the speech in a macro sense.

The reading reminded me of a ancient form of Just Say the Word! I felt that this week’s reading seemed different than the previous Aristotle readings because the reading seemed less theoretical and more practical. The chapters seem more focused on creating a consistent speech that would persuade. I think Aristotle’s book is analogues to my experience in APP (or for those old timer LARC III ☺). In the beginning of APP we get our moot court problem and we try to learn everything there is about the law that controls the problem. Towards the end of APP the class focuses on what to do in oral argument. In those classes, the law isn’t as important. There we learn the basics: say “May it please the Court,” start off with your strongest point, give a roadmap, frontload your questions…These seem like easy things because what is really difficult is articulating the law. Remembering that this book is really a collection of Aristotle’s lecture notes, it seems that he followed the APP approach. Discuss the hard parts/small parts first, and then discuss the easy parts/large parts last. When attention is given to the small parts, the large parts fall in place.

I thought it was interesting that in Chapter 15, Aristotle talks about fighting prejudicial attacks. I didn’t understand it at first, but what he is really talking about goes to re-establishing credibility. At trial this is crucial if your witness has been attacked on cross. Aristotle suggests several things that we do in re-direct: say why the attack to the credibility is untrue, explain it away, or use empathy to convince the trier of facts that normal people would do the same thing.

blake whitcomb said...

I thought this was generally a good assignment. For an overview of structure, I think it could have been better organized but realize it wasn’t originally intended to be conveyed in this form.

Chapter 15 is a good go-to guide on counter attack and offered some great examples. However, I think many of the tactics mentioned would have to be internalized to be effective. I think most of them would become useful through experience and not from reading. Also, I’m going to have to read up on stasis theory—the chapter 15 reading prompt peaked my interest.

I don’t remember who said it earlier but I want to echo “I should have thought more about structure in my mid-term speech.” Even if our stories weren’t supposed to be arguments, my work on beginning-middle-end lacked a solid introduction-purpose-conclusion that would have packaged the story more effectively.

The chapter on narration mirrors what we covered the last few weeks and the chapter on interrogation is a prelude of what’s to come next year in PC. What I really enjoyed was the chapter on epilogue. I thought this had the best structural argument of the assignment and I’m bookmarking the four goals for use in the near future.

Patrick Sheridan said...

Having been the subject of a cross-examination recently (thanks to PC friends), I really could relate to Chapter 18 on interrogation. Some parts of the Chapter seem particularly applicable to modern-day cross-examination.
For instance, Aristotle warns against getting into an extended series of question-exchanges with an opponent because of the “weakness of the audience.” The fear is that the audience will not follow like when an orator tries to make an extended argument. However, one of the techniques a lawyer should use to combat this tendency on the audience is to ask the questions so that the answer builds on a continually progressing narrative. Then, it seems not so much like an extended argument as an extended story.
Also, Aristotle gives a great example of an interrogator who asks one question too many. After eliciting a favorable response to a question that points directly to a conclusion, the interrogator asks the conclusion as a question (“Therefore, would it also be just to put you to death?”). Of course the subject of the questioning is going to say “No!” and Aristotle coaches likewise by attacking the reasons for the conclusion.

Cheryl said...

There were two things that spoke to me while I was doing the reading for this week (or maybe they were the only two things that I really understood). First, I thought the discussion on how to organize your arguments v. refuting your opponents arguments in Chapter 17 was interesting. I never thought to refute your opponents view first, but it makes sense. If the opponent has been met with approval or has spoken well, this is the last thing on the listener's mind. Instead of leaving that positive impression with them, the speaker could first refute the opponent's points before moving on with their own. I thought this was an incredible tactic to use, especially as defense counsel in either a criminal or civil trial.

Second, I thought the discussion of interrogation in Chapter 18 was interesting. Specifically, the idea that someone should not attempt interrogation because if the opponent resists, the speaker seems to be defeated. Last week, I witnessed for a mini-trial in P.C. as an expert, and this exact thing happened on cross-examination. Counsel for the defense was trying to get me to agree to things that I knew (or in real life was supposed to know) better than she did. The professor stated that trying to interrogate me in my area of speciality was a bad idea because she was just going to get "clobbered" every time.

James Hatchitt said...

Aristotle's assertion that the accuser or proponent attack his opponent's case at the very end, so it is still fresh in the mind of the audience, is something I've heard before. There do seem to be two schools of thought, though. At different times, I've been told to speak just like Aristotle prescribes, devoting a short section of my argument to my opponent's case close to the end. I've also had people tell me that it seems weak to devote time (of which we're limited) to attacking a hypothetical case that my opponent may or may not present. Over the past two years, I have liked the former. But I suppose it's a matter of taste.

Also, the strategies for cross examination that Aristotle outlines are almost exactly what we hear today: using undeniable facts to paint an alternative picture from the one that the witness claims is true. In Chapter 18, Aristotle specifically refers to: 1) making the witness contradict himself, 2)presenting him with self-evident facts, 3) making the witness answer in absurdities, and 4) what we would call "making the witness waffle" (saying "sometimes yes, sometimes no" to a question). All of these techniques are practiced today in cross examination.

As Luke noted, Aristotle advised against using interrogation because a skillful opponent may easily defeat you. I think anyone that has attempted cross examination can tell you there are times when you're a little nervous. But Wigmore did call it the "greatest engine ever invented for the discovery of truth." Even though it might cut you if misused, if can be a very effective weapon.

James Reed said...

I thought this was one of the more easily understood Aristotle readings we have been assigned. It was filled with very useful tips and pointers. It still amazes me how we still use the structures and strategies for oral arguments that Aristotle devised so long ago. The advice in chapter 19 on how to devise a conclusion to your argument was very similar to the advice we were given during PC regarding closing arguments. Aristotle believed there were four parts to a conclusion; (1) make the audience like you or your side and dislike your opponent, (2) amplify or diminish the leading facts, (3) incite emotion in your hearers, and (4) refresh their memories. In my opinion I believe that by far the most important of the four parts is the ability to evoke the desired emotion in the hearer. Professor Wren would always tell us that the most important thing you can do is strike an emotional chord in a juror and give them a reason to care. If you can get a person emotionally invested in your argument and caring about your side, they are much more likely to fight for you during deliberation. Humans are emotional beings and many times the emotions win out over logic. If you can get someone emotionally invested in your side, many times nothing else matters.

David Henry said...

I like that the reading has shifted to more of a big picture type discussion on how to put it all these things that we have been learning about together. Sometimes, it seems as if structuring an argument in a way that effectively captures the attention of the audience is the hardest part.

I think it is interesting that Aristotle says to put the attack at the end of the speech. This reminds me of what I have been hearing since third grade about how the listener is most likely to remember the last thing that they hear. I wonder if that is the reason we have been taught that we should appeal to the emotions and make the listener feel like they are doing something important at the end of our closing arguments.

For the most part, this reading assignment seems to echo things we were taught in practice court.

Jean L. Finch said...

I simultaneously appreciate and loathe discussions on delivery. Because although it is necessary and important – the audience is swayed by delivery – it also feels like an affect. it seems like changing pitch and pace and movement makes whatever you’re saying extraordinarily contrived and insincere. not to mention how uncomfortable it is to have to pay attention to the details like the sound of your voice “while expressing each emotion”.
Nonetheless, I also think delivery is much like the chapters explaining the need to build ethos before you build logos. It’s not necessarily manipulative; both Prof. Osler and Gloer have reiterated their belief that it’s not manipulative but rather being very genuine in the most powerful way possible. That still sounds like manipulation to me. The only way I can get to delivery not being a manipulation of the audience (and therefore something that would be very uncomfortable because it’s unnatural), is to recognize that Aristotle’s not telling you some new method of delivery that’s more effective than the way the rest of us do it. Instead he’s simply pulling aspects from how we all discuss things that we’re passionate about. When you’re talking about the time you spent with your mom before she passed away, you’re going to sound different than when you’re telling about the day you shot made the winning basket to win the game in overtime. The pace, the volume, the quality of the sound, and the pitch of your voice is going to sound different in each story and yet it’s the subtlety of those differences that make the story powerful.

Brad Kinkeade said...

"Moreover, an epilogue is not a requirement of every judicial speech - for example, if the speech is short or if the subject is easily remembered..." No truer words have been spoken. The difference in time between my first closing and my last closing was probably 5 minutes, and I prepared longer and harder for my last closing. Realizing over the course of PC that a jurors attention span is short (especially at the end of a long case) it was my job to help them remember a few key points so that they can argue them for me when the go to deliberate. I tried to carry this short and sweet theme into my DX and CX. I tried to limit both to one page and to only a few points (usually 3 or less). By developing only the most crucial points, the jury was better able to follow "my" story of the facts and hopefully believe me at the of the day.
Aristotle discusses a preface - a speaker might want to ask for pardon if the speech is "already much discussed." I find myself doing this, apologizing to the jury for going into the same material with a different witness or with a CX. I'm not sure how effective it is. It almost primes the jurors to be irritated with me and gives them the ok to stop listening. When I went to Bell County to listen to a closing, the attorney apologized for keeping the jurors so late into the day. I'm not sure if it did any good; they still seemed to be tired and even more exhausted when they realized they were going to have to listen to more talking.
"My favorite part was when aristotle said..." When I start a sentence like this hopefully it had the effect that aristotle intended which is to engage the audience. Even though he said that this shouldn't be need using pure logic he knows that it is a necessity to keep the audience attentive. I try to use "if you hear nothing else, hear this..." It seems to wake the jurors up when there is something important.

B. Jiral said...

"I had forgotten how confusing the way Aristotle's writings, but the 'how-to' on organization of a speech was logical and it was laid out much simpler than the rest of his writings were. It made sense not only grammatically, but the structure that he gives parallels everything we learned in PC, and I liked how he told why as well. A closing argument is the last chance you get to align your troops on the jury. Powell always said that you won't win with a closing, the point is to get the "iffy" jurors to come to your side and to get the jurors solidly on your side to fight for you in the jury room. I think Aristotle alludes to this in Chapter 14. The introduction of the closing argument will get the jurors who are ready to vote for you ready to remember your key points and softens the unsure jurors up to keep an open mind.
I have seen quite a few closings done in court, and the best ones pretty much followed what Aristotle laid out. They were concise but didn't leave anything out, they flowed well, and they marshalled the jury's prejudices. By Prejudice I don't mean anything negative, I mean the common sense and everyday beliefs that we hold as a society. Aristotle lays this out very well with "I have done. You have heard me. The facts are before you."
I agree with Kim about the use of a character attack being inventive. I see no moral problem by pointing out the motive for their suit or their faults as a witness/accuser. Alot of times the only weak part for a case is the motive, and I saw this time and time again while we were doing mini-trials--most civil cases I have come across have been he-said/she-said. The only way to come to a conclusion then, is to go not after the accuser himself, but go after his reasons and his conclusions. Like Kim said, it allows you to defend without appearing insensitive to the accusor' injuries."