JALWD, Journal of the Association of Legal Writing Directors

With Amici Like These: Cicero, Quintilian and the Importance of Stylistic Demeanor


Michael H. Frost*

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There is a grave sickness in this nation, the schism of society has begun, and there is severe social tension. The right to display the Ten Commandments is rooted in our Declaration of Independence, and is urgently needed as representing this nation’s Faith in God and His moral law . . . . History discloses that the incurable sickness of the world is due . . . to the total corporate failure of man in the realm of righteousness.1

No gods, spirits, fairies, or other imagined entities pull at the strings of humanity . . . . Materialism compels faith in the human intellect, in the power of knowledge in man’s ability to fathom all the secrets of nature and to create a social system based upon reason and justice.2

The foregoing passages appear in the opening pages of competing amicus briefs submitted in the recently decided First Amendment case of McCreary County v. ACLU.3 The case concerned the constitutionality of Ten Commandments displays in two Kentucky courthouses. Depending on a reader’s taste in rhetoric, they reflect either the advocates’ passionate conviction in a just cause or inflammatory hyperbole. What they do not reflect is a clear sense of judicial audience, which is especially odd in a case that centers on a different kind of audience: the “reasonable observer.”4 More remarkable still, these passages do not appear in the Argument section of the briefs. The first passage appears in the Faith and Action organization’s “Introduction”; the second in the American Atheists organization’s “Statement of Interests of Amicus Curiae.”

Whatever sentiments lie behind these passages, their emotional effects on the intended audience—Supreme Court justices and their clerks—are important, but unpredictable. What their authors must have forgotten or ignored is that an ill-considered opening phrase can damage an advocate’s credibility with the Court. The opening pages set the intellectual tone for the entire brief. They can also provoke an emotional response that is difficult, if not impossible, to control. And, finally, they can reveal more than the speakers intended, about themselves and their arguments. In effect, the opening pages create a kind of stylistic demeanor for the entire brief.

The authors of these passages would have benefited greatly from the advice of experienced rhetoricians like Cicero, who knew the value of strong opening arguments and wrote copiously on the subject.5 He would remind them of the limits of affective, non-rational appeals to emotion. Out of concern for their credibility, he would urge them to scale it back. He would recommend a subtler, more focused approach, one that concisely prepares the judge for the arguments that follow. And, finally, he would observe that style reflects character and that judges are more favorably disposed in the presence of a “good man speaking” well.6

Unfortunately, even experienced brief writers frequently, and inexplicably, fail to recognize or exploit the most rhetorically powerful location in the brief: its opening pages. This failure is especially unfortunate since judges (or their clerks) rely on these pages to start assessing a brief's merits and its author's credibility.

In a case like McCreary, which involved a volatile mix of religion, history and politics, rhetorical style is especially important because the Court already knows what kind of arguments the parties will make. Given the subject matter of the case, the Court knew there would be separation of church and state arguments.7 Based on the Kentucky counties petition for certiorari, the Court also knew that briefs would include fact-and context-based arguments; arguments about which “test” to apply; and arguments about how “foundational” the Commandments were in the creation and development of American law.8 And, if that is not enough, the Court’s opinion in another Ten Commandments case, the 1980 case of Stone v. Graham, 9 provided some clues about which arguments would be made in McCreary. Given the predictability of the types of argument, the manner of argument becomes even more important.

Because the McCreary case addressed controversial, high-profile issues, numerous briefs (29) were submitted in the case, including a brief on the merits from each of the parties and twenty-seven amicus briefs.10 Predictably, the briefs varied widely in quality and, as the preceding epigraphs show, rhetorical style. In one way or another, most of them underestimated the tone-setting potential of the opening pages. This miscalculation ignores the fact that, simply by virtue of their placement, these pages are psychologically important.

Like all good advocates, Cicero understood the importance of psychological primacy. If he evaluated the briefs filed in McCreary, especially their questions presented, tables of contents, and argument summaries, he would be disappointed at the way the advocates begin. He would find that they repeatedly squander the rhetorical opportunities available in the opening sections of their brief. Instead of crafting those sections to maximize their rhetorical impact, the brief writers rely too much on vague abstractions, they provoke emotions they cannot control, and they obscure their arguments with hyperbole. Cicero would be surprised at their lack of tact and their poorly disguised question begging. He would be dismayed by their credibility-damaging displays of intemperance and arrogance. Above all, he would be shocked at the ways they miscalculate the needs and temperament of their audience—the Court.

I. Greco-Roman Approaches to Advocacy

A. Emotion, credibility, and the strategy of persuasion

While contemporary advice about persuasive legal rhetoric is plentiful, and in many cases excellent, it often de-emphasizes or ignores the persuasive effects that emotion and the credibility of advocates have on a judge's decision.11 Fortunately, 2,500-year-old rhetorical handbooks created by the Greeks and Romans provide an excellent and illuminating resource for understanding how both emotion and an advocate’s credibility affect a judge’s decision. These time-tested Greco-Roman handbooks are devoted to the art of persuasion and were at the heart of legal education for nearly a thousand years.12 Their insights into the techniques of legal argument are as applicable today as they were 2,500 years ago.

Greek and Roman rhetoricians like Aristotle, Cicero, and Quintilian took a rigorously audience-focused approach to legal persuasion.13 They wrote voluminously on the topic and on many other aspects of legal discourse and practice.

Part of their analysis focused on how legal arguments should be organized. Based on their own experience and their observation of other successful advocates, they divided legal argument into six distinct, but interrelated, parts: Introduction, Statement of Facts, Division, Proof, Refutation, and Conclusion.14 Each part has a clear, but not necessarily logical, role to play.

A substantial part of their analysis also focused on affective or nonrational modes of argument. In their view, successful arguments depend as much on appeals to emotion (pathos) and the advocate’s credibility (ethos) as they do on logic (logos). Moreover, both pathos and ethos help determine an advocate's organizational strategies and exercise a considerable influence on a judge’s decisions. Classical rhetoricians understood and repeatedly stressed that all three modes of argument—logos, ethos, and pathos—were connected and inter-dependent. Although time has somewhat obscured its connections to these ancient principles, the Greco-Roman six-part structure of legal argument has survived virtually intact to the present day. As a testament to its abiding relevance, it provides the organizing principles for briefs submitted to the United States Supreme Court (as will be discussed in Part B below). Its survival is attributable not only to its logical appeal, but also to its recognition of the importance of emotion and advocate credibility in the outcome of the case.

B. Classical exordium or statement of the issues

The classical treatises meticulously explained the function of each part of legal argument and its relationships with the other parts. Under classical theory, legal arguments begin with an exordium identifying the issue(s) before the court. Exordium, which means “the warp of a web” or “a beginning,”15 is an especially apt metaphor because it stresses the integration of the parts with the whole, an important point when analyzing the structure of arguments.

The classical exordium occasionally consisted solely of questions, a practice used by Cicero, and approved by Quintilian.16 Usually, however, the classical exordium was much longer than its modern equivalent and was intended for a listening rather than a reading audience.17

In his analysis of forensic discourse, Quintilian identifies the exordium as that “portion of a speech addressed to the judge before he has begun to consider the actual case.”18 Its purpose is “to prepare our audience in such a way that they will be disposed to lend a ready ear to the rest of our speech.”19 This is accomplished by including “the points which seem most likely to serve our purpose”20 and by rebutting or lessening the force of points that damage the case.21

Cicero takes a similar approach, except he adds that “[t]o secure an intelligent and an attentive hearing, we must start from the actual facts themselves.”22 Another rhetoric handbook, the Rhetorica ad Herennium, also emphasizes that the purpose of the exordium is to “enable us to have hearers who are attentive, receptive, and well-disposed.”23 Like Cicero, its anonymous author insists that the exordium be framed only in terms of the facts of the case being heard, noting that an “[i]ntroduction is faulty if it can be applied as well to a number of causes.”24

Even allowing for differences between the spoken exordium and the written Questions Presented, the classical strategies for composing exordia also apply to the statements of the issue for the U.S. Supreme Court. Under Supreme Court rule 14.1(a), the questions presented must be “expressed concisely in relation to the circumstances of the case, without unnecessary detail. The question should be short and should not be argumentative or repetitive.”25 Like the classical exordia these questions introduce and orient the Court to the key legal issues.

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∗ © Michael H. Frost 2006. Professor of Legal Writing and Irwin R. Buchalter Professor of Law, Southwestern Law School. With many thanks to my Southwestern colleagues, Michael Epstein, Jonathan Miller and Dennis Yokoyama, for their helpful suggestions on early drafts of this piece. I am also grateful to Professor Linda Berger and the J. ALWD staff and reviewers for their insights and patience.

1 Amicus Br. of the Faith and Action et al. at 2, McCreary County v. ACLU, 125 S. Ct. 2722 (2005) (available at 2004 WL 2851007) [hereinafter Faith and Action’s Brief].

2 Amicus Br. of the American Atheists at 2, McCreary County v. ACLU, 125 S. Ct. 2722 (2005) (available at 2005 WL 45049) [hereinafter American Atheists’ Brief].

3 125 S. Ct. 2722 (2005).

4 County of Allegheny v. ACLU, 492 U.S. 573, 635 (Justice O’Connor concurring).

5 See infra pt. I.

6 Edward P.J. Corbett, Classical Rhetoric for the Modern Student 99 (2d ed., Oxford U. Press 1971); 4 Marcus Fabius Quintilianus, Institutio Oratoria 355 (Loeb Classical Library) (H. E. Butler trans., Harv. U. Press 1921). When one of the multi-volume works by Quintilianus or Cicero is cited in this article, it is cited first by Loeb Classical Library volume number, then by author, then by title, and then by page number.

7 Pl.'s Pet. Writ. of Cert., McCreary County v. ACLU, 125 S. Ct. 2722 (2005) (available at 2004 WL 1427470) [hereinafter Pl.'s Pet. Writ. of Cert.].

8 Id.

9 449 U.S. 39 (1980).

10 See Br. of Respt., McCreary County v. ACLU, 125 S. Ct. 2722 (2005) (available at 2005 WL 176670) [hereinafter Br. of Respt.]; Br. of Petr., McCreary County v. ACLU, 125 S. Ct. 2722 (2005) (available at 2004 WL 2851009) [hereinafter Br. of Petr.]. The following briefs are in support of Respondents: Amicus Br. of Legal Historians and Law Scholars (available at 2005 WL 166586) [hereinafter Legal Historians’ Brief]; Amicus Br. of Baptist Joint Committee et al. (available at 2005 WL 166927) [hereinafter Baptist’s Brief]; Amicus Br. of Council for Secular Humanism and International Academy of Humanism (available at 2005 WL 92335) [hereinafter Secular Humanism’s Brief]; Amicus Br. of Freedom from Religion Foundation (available at 2005 WL 65494) [hereinafter Freedom from Religion’s Brief]; Amicus Br. of Atheist Law Center et al. (available at 2005 WL 68040) [hereinafter Atheist Law Center’s Brief]; American Atheists’ Brief, supra n. 2; and Amicus Br. of Anti-Defamation League and Philip A. Cunningham (available at 2004 WL 2911167) [hereinafter Anti-Defamation League’s Brief]. The following (and majority of) briefs are in support of Petitioners: Amicus Br. of American Humanist Association et al. (available at 2004 WL 2911173) [hereinafter American Humanis’'s Brief]; Amicus Br. of Conservative Legal Defense and Education Fund et al. (available at 2004 WL 2812087); Amicus Br. of Judicial Watch, Inc. (available at 2004 WL 2812098) [hereinafter Judicial Watch’s Brief]; Amicus Br. of the Becket Fund for Religious Liberty (available at 2004 WL 2825467) [hereinafter Becket Fund’s Brief]; Amicus Br. of Ashbrook Center for Public Affairs and Ohio Senator Bill Harris (available at 2004 WL 2825469) [hereinafter Ashbrook Center’s Brief]; Amicus Br. of Eagle Forum Education & Legal Defense Fund (available at 2004 WL 2825470) [hereinafter Eagle Forum’s Brief]; Amicus Br. of the United States (available at 2004 WL 2831788) [hereinafter United States’ Brief]; Faith and Action’s Brief, supra n. 1; Amicus Br. of Pacific Justice Institute (available at 2004 WL 2851010) [hereinafter Pacific Justice’s Brief]; Amicus Br. for the States of Alabama et al. (available at 2004 WL 2851012) [hereinafter Alabama’s Brief]; Amicus Br. of the Family Research Council, Inc. and Focus on the Family (available at 2004 WL 2851013) [hereinafter Family Research’s Brief]; Amicus Br. of Thomas More Law Center (available at 2004 WL 2851014) [hereinafter Thomas More’s Brief]; Amicus Br. of Foundation for Moral Law, Inc. (available at 2004 WL 2851217) [hereinafter Moral Law’s Brief]; Amicus Br. of American Liberties Institute et al. (available at 2004 WL 2866648); Amicus Br. of American Center for Law and Justice (available at 2004 WL 2866649); Amicus Br. of WallBuilders, Inc. (available at 2004 WL 2959879); Amicus Br. of the Rutherford Institute (available at 2004 WL 2825468); Amicus Br. of National School Boards Association et al. (available at 2004 WL 2802966); Amicus Br. of the American Legion (available at 2004 WL 2851008); and Amicus Br. for the States of Minnesota et al. (available at 2004 WL 2851011).

11 See Carole C. Berry, Effective Appellate Advocacy: Brief Writing and Oral Argument (3d ed., West 2003); Michael R. Fontham et al., Persuasive Written and Oral Advocacy in Trial and Appellate Courts (Aspen 2002); David C. Frederick, Supreme Court and Appellate Advocacy (West 2002); Richard K. Neumann, Jr., Legal Reasoning and Legal Writing: Structure, Strategy, and Style (5th ed., Aspen 2005); Edward D. Re, Brief Writing and Oral Argument (9th ed., Oceana Publications 2005); Steven D. Stark, Writing To Win: The Legal Writer (Main Street Books 2000); Robin S. Wellford-Slocum, Legal Reasoning, Writing and Persuasive Argument (2d ed., Lexis 2006).

12 Michael H. Frost, Introduction to Classical Legal Rhetoric: A Lost Heritage 2 (Ashgate Publg. Co. 2005); A Short History of Writing Instruction: From Ancient Greece to Twentieth-Century America 19-20 (James J. Murphy ed., Hermagoras Press 1990); Corbett, supra n. 6, at 595 (dating the origins of rhetoric from the fifth century B.C.).

13 Of the three, Aristotle (384-322 B.C.) is the most famous and the most influential. In addition to being a philosopher, scientist, metaphysician, logician, and teacher, he also wrote Rhetoric, a rhetoric manual that heavily influenced all those who followed him. Cicero and Quintilian are his Roman successors.
Marcus Tullius Cicero (109-43 B.C.) was a politician, legal orator, scholar, Roman consul, and author. His collection of rhetorical works includes De Inventione (On Invention), Brutus, De Optimum Genere Oratore (The Best Kind of Orator), Orator, De Partitione Oratoria (Of the Classification of Rhetoric), Topica and, most famously, De Oratore (On the Orator). De Oratore is a comprehensive multi-volume examination of rhetoric and its place in the world of practical affairs.
Marcus Fabius Quintilianus (35-95 A.D.), a great admirer of both Aristotle and Cicero, was a legal orator but, above all, he was a teacher. In his twelve-book Institutio Oratoria (Training of an Orator) he describes not only principles of legal rhetoric but also basic Roman educational principles.

14 Rhetorica ad Herennium 9 (Loeb Classical Library) (Harry Caplan trans., Harv. U. Press 1954) [hereinafter ad Herennium]. Quotations are from the anonymous Rhetorica ad Herennium. At one time, scholars thought that the ad Herennium was the work of Marcus Tullius Cicero. For that reason, it is included in the Loeb Classical Library with Cicero’s other works.

15 Cassell's New Compact Latin Dictionary 85 (D.P. Simpson comp., Dell Publg. Co. 1963).

16 2 Marcus Fabius Quintilianus, Institutio Oratoria 63 (Loeb Classical Library) (H. E. Butler trans., Harv. U. Press 1921).

17 Richard Enos, The Literate Mode of Cicero’s Legal Rhetoric 60 (S. Ill. U. Press 1988) (explaining that “oral and written expression were so inextricably bound in ancient discourse that its unity was an unquestioned presumption upon which theories of rhetoric were developed”).

18 Quintilianus, supra n. 16, at 7.

19 Id. at 9.

20 Id. at 17.

21 Id. at 21.

22 4 Marcus Tullius Cicero, De Partitione Oratoria 335 (Loeb Classical Library) (H. Rackham trans., Harv. U. Press 1921).

23 ad Herennium, supra n. 14, at 13.

24 Id. at 21.

25 Sup. Ct. R. 14.1(a).