Themes: Part 4 – The Nations Law Firm

3. Rhetorical Tools of Structure – A review of the great speeches from Cicero and Demosthenes through Abraham Lincoln, Winston Churchill, John F. Kennedy and Martin Luther King reveals that there are common threads which pervade the great oratorical works. The prevalent thread is the effective utilization of rhetorical devices as a predicate to persuasive oratory. Rhetorical devices are language techniques which are used to arrange words in distinctive and persuasive phrases, sentences and paragraphs in order to forge greater force and fluency. Through the use of rhetorical devices, attorneys can couch themes more clearly and persuasively. There is no technique more useful to lift language from the abyss of lackluster speech to the peaks of eloquence.

The effective closing argument is an art as well as a science. As with all art and science, certain devices, techniques and tools can enhance the finished product. The plaintiff’s counsel must be able to use effectively the various rhetorical devices available to activate, stimulate and motivate the jurors. Although many rhetorical devices technically bring argument outside of the record, the facts of a case may be related to history, fiction, personal experience, anecdotes, Bible stories or humor. See Sheffield v. Lewis, 287 S.W.2d 531, 539 (Tex. Civ. App. -Texarkana 1956, no writ).

In Beaumont Traction the Court said:

If the conclusion of fact he wishes to bring the jury to by his argument is such as the law makes applicable to the case, and there is any evidence from which such conclusion can be deduced, he may use all the strength of mind and powers of utterance he can command to bring the jury to such conclusion. He may illustrate principles upon which he builds his argument by drawing on history, fiction, personal experience, adjudicated cases, and may even appeal to the logic of the poets….

Beaumont Traction Co. v. Dilworth, 94 S.W. 352, 355 (Tex. Civ. App. 1906, no writ.)

The following is a partial list of rhetorical weapons that have proved effective in the closing argument arsenal.

a. Triad – One of the most frequently used techniques throughout the history of eloquence is the rule of three, sometimes referred to as the triad. As a means of communicating rhythmically, memorably, and persuasively, the rule of three is one of the most valuable tools available to trial lawyers. This is true because the conscious mind is able to best deal with three items in terms of reception, retention and recall.

The idea is to communicate in threes in any unit of language: words, phrases, clauses, sentences, paragraphs, or the development of the entire argument. A rule for advocates is to try to convey three major messages to your jury in such manner that the messages can be remembered. Instead of trying to cover every minor point and persuade on every minor issue, we develop themes which are repeated throughout the trial. You may wish to develop three themes which you will try and convey to the jury or one theme with three messages within the theme. From the viewpoint of trial lawyers the rule of three can be used for everything from effective use of three words through effective persuasion on three themes.

Consider the following well-known examples in which the triad achieves rhythmic eloquence:

We hold these truths to be self evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.

***

We mutually pledge to each other our lives, our fortunes, and our sacred honor. (Thomas Jefferson).

Never in the field of human conflict was so much owed by so many to so few. (Winston Churchill)

With malice toward none, with charity for all; with firmness in the right.

We cannot dedicate – we cannot consecrate – we cannot hallow this ground.

And that government of the people, by the people, for the people shall not perish from the earth. (Abraham Lincoln)

Duty – Honor – Country. Those three hallowed words reverently dictate what you ought to be, what you can be, and what you will be. (Gen. Douglas MacArthur)

The Greek philosopher and mathematician, Pythagoras, referred to three as a perfect number. This was predicated on the ancient Greek belief that the world was ruled by three Gods and the Greeks revered love, laughter and beauty. The ancient Chinese worshiped gentleness, frugality, and humility. In Scandinavian mythology the Mysterious Three sat on three thrones above the rainbow. The Hindu trimurti consists of three Gods: Creator, Preserver and Destroyer. Christians believe in the trinity by which God exists in three persons: Father, Son, and Holy Ghost; Faith, Hope and Charity are the three Christian graces. Three wisemen paid homage to the newborn Jesus and brought three gifts: Gold, Frankincense and Myrrh.

The structure of man has three dimensions: Body, Mind and Spirit. Nature is divided into three: Mineral, Vegetable and Animal. Time has three aspects: Past, Present and Future. Government is divided into three levels: National, State and Local. Within each level of government there are three divisions: Executive, Legislative and Judicial. Psychoanalysts divide the human personality into three functional parts: Id; Ego; and Superego.

As we attempt to compose a summation or a persuasive theme the principles of composition are unity, coherence, and emphasis. Each summation or speech, according to Aristotle, should have a beginning, middle and end which are also termed as introduction, body and conclusion. Greek dramatists originated the concept of three divisions of drama: tragedy, comedy and satire. The three classical principles of dramatic construction are unity of time, unity of place and unity of action.

Thus, the rule of three is a basic tool for those who write prose, poetry, drama, humor, political speeches and persuasive messages. It should also be a powerful tool in the arsenal of the skilled trial attorney. As advocates, we can effectively use the triad during the trilogy of persuasion, the three times that we directly address the jury: voir dire, opening statement and summation.

Forensic psychologists tell us that grouping items in threes makes them easier to remember. The Rule of Three has been used by great orators throughout history to enhance the persuasive power of their oratory. The classic example is the following segment from a radio speech delivered by Prime Minister Winston Churchill to the citizens of England as the Battle of Britain was underway:

We shall fight them on the beaches,

we shall fight them in the streets,

we shall fight them in our homes,

we shall never, never, never surrender.

The use of the term “we shall fight them” to begin three consecutive sentences is the device of refrain. The phrases “on the beaches”, “in the streets”, “in our homes” illustrate the use of three word phrases at the end of three sentences. The term “never, never, never” illustrates the use of the Rule of Three in the middle of a sentence.

b. Parallel Structure – Parallel structure is an extremely effective technique for use during either opening statement or summation. It is particularly useful in a catastrophic injury case. As an example of this type of structure, consider the following excerpt from a speech by Senator William Fulbright:

There are two Americas.

One is the America of Lincoln and Adlai Stevenson,

The other is the America of Teddy Roosevelt and General MacArthur.

One is generous and humane,–the other narrowly egotistical;

One is modest and self critical–the other arrogant and self-righteous;

One is sensible–the other romantic.

Applying this technique to a summation can give the following results:

We have seen two Thomas Miller’s in this case.

One an energetic and active father–the other a bedridden paralytic.

One a helpful and loving husband–the other a helpless patient.

One a hard working provider–the other a financial burden.

One a healthy happy Thomas Miller before this defendant’s tragic mistake;

the other, Thomas Miller for the next forty years.

c. Antithesis – The rhetorical device of antithesis is used to balance contrasted ideas so as to highlight both ideas through the parallel arrangement of key phrases. Antithesis is used in conjunction with parallel structure to effectively counterpoise and contrast the past and the future, life and death, healthy and crippled, words and deeds, one and many, light and dark, mortal and immortal, age and youth, male and female, choice and determination and any number of other counterpoising principles. The effect of combining antithesis and parallel structure can create compelling and memorable summations.

For example, consider that President John F. Kennedy’s speeches were replete with antithesis. The classic example of the use of antithesis was contained in John F. Kennedy’s inaugural address wherein he entreated the American citizenry with the following challenge:

We observe today not a victory of party, but a celebration of freedom, symbolizing an end as well as a beginning, signifying renewal as well as change.

Let us never negotiate out of fear, but let us never fear to negotiate.

And so my fellow Americans, ask not what your country can do for you, ask what you can do for your country.

If a free society cannot help the many who are poor, it cannot save the few who are rich.

This technique, applied to the death of a child, may be used as follows:

In determining the damages in this case, don’t look at the death of this child, but look at the life which never will be.

The technique of antithesis is also extremely useful during summation in order to assist the jury in assessing the damages for an extended period of time in the future. As Winston Churchill said, “The further backward we look, the farther forward we see.”

Assume that you represent a twelve year old quadriplegic who has a sixty-four year life expectancy. One technique for making the jury appreciate how long sixty-four years of future mental anguish will be is to ask them to look back sixty-four years. The technique is to enumerate well known events which occurred from 1927 chronologically through 1991 such as Babe Ruth hitting 60 home runs, the stock market crash, the depression, Pearl Harbor, World War II, Korea, the Kennedy Camelot years, Watergate, etc. up to the present. See, for example, the use of this technique in an actual summation on page 81.

In order to make the jury understand the mental anguish which is to be suffered by this child for the next sixty-four years, as you catalog each of the occurrences from history since 1927 you use the refrain that

If this accident had occurred 64 years ago this plaintiff would have witnessed this significant event of 1929 from his wheelchair as he endured mental anguish everyday of his life.

Another effective technique to demonstrate future economic cost is to compare the cost of a Ford automobile, a gallon of gasoline, a loaf of bread and other items from a Sears Roebuck catalog from those years in order to demonstrate the extreme increase in prices which the plaintiff will be required to cope with over the next sixty-four years.

d. Repetition – Aristotle’s third principle: Refresh the memory of your audience frequently.

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