Rhetoric as a Guidebook for our Trials

Jul 07, 2017

A student's perspective on how the study of Rhetoric can improve the trial system

Jenna Welsh

Aristotle once wrote that "rhetoric is useful, because the true and the just are naturally superior to their opposites, so that, if decisions are improperly made, they must owe their defeat to their own advocates; which is reprehensible." In essence, he meant that truth and justice are of upmost importance in society, and when they don't prevail it means something went wrong in the argument. Furthermore, the advocates he wrote of are advocates of justice. Today, justice is established in our courtrooms, its advocates are our lawyers, and oftentimes our juries ultimately decide what constitutes our truth. However, the principles of rhetoric that Aristotle and other great rhetoricians once taught are not always practiced extensively in the courtroom. While rhetoric has become a catch-all term for any language that is persuasive, there are specific principles, aspects, and teachings surrounding rhetoric I believe would be greatly beneficial in a jury trial. I will focus on one key method within the study and practice of rhetoric about inventing arguments that I find to be of particular practical use.

The Greek rhetorician, Hermagoras, set forth an invention strategy for legal arguments called Statis theory. Within this theory, Hermagoras proposed four steps to work through. For steps; it's that simple. Say you are working for the defense team in a jury trial about an assault with a deadly weapon (for example, your client allegedly stabbed someone else). The first step in Hermagoras' stasis theory is a conjecture in which you ponder the question of did this event, crime, or act happen? If you can incent an argument which proves the crime didn't happen then your work is done. However, if not then you move on to a definition of the charges. Can you define the act in a way that it doesn't meet the definition of the charge? For example, was the altercation an accident and not actual maliciousness or reckless conduct? Was a deadly weapon actually present or used? If you cannot come up with an adequate response to this question, you move onto the third stage, which is qualifying the actions. Were there extenuating circumstances such as self-defense? If not, you then move onto the last question, which is of objection. You question the procedure and technicalities within the trial itself, for example you might point to inadmissible evidence.

Overall, using Hermagoras' stasis theory as a valuable tool in the invention stage of legal arguments and can be incredibly useful to the courtroom process. If utilized properly by the advocates of justice Aristotle once referred to, it would undoubtedly make our great rhetoricians satisfied in knowing the purpose of rhetoric is being justly fulfilled still to this day.

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Jenna Welsh is a senior at Pepperdine University majoring in Rhetoric and Leadership.

Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at PepperdineUniversity in Malibu, California where he teaches MediaLaw. COM 570 covers First Amendment issues as well as copyright, defamation and privacy.


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