Characterization and Legal Discourse
Laura E. Little*
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It’s tough being married to a lawyer. Rhetorical skills, refined in law school and practiced daily, stand ready for service in marital discourse. One technique my lawyer-husband has used stands out as particularly effective. It emerged early in our marriage and to this day remains a potent instrument of “negotiation” through the various disagreements that encumber a modern family.
I call the technique “characterizing,” but other labels are appropriate as well. “Spinning” and “frame-shifting”1 also come close to capturing the wordplay: reframing a dispute on terms favorable to the speaker.2 Here’s an example:
Wife (newly married): We’ve been living together for several months and I’ve restrained myself from nagging about housework. But I can’t take it any longer. I am doing the shopping, cooking, dishwashing, tidying, scrubbing, bill paying, and most of the laundry. You’re not doing your share.
Husband: This is a marriage, not a checklist. You can’t “keep score” in a mature relationship. You must have faith that everyone is doing their best. You will undermine us if you insist on running a tally.
Perhaps the most skillful part of my husband’s rejoinder here is his success in dodging my formulation of our housekeeping dilemma. Had he not done so, he surely would have lost the argument. If one were to look at who in the household was doing the shopping, cooking, dishwashing, tidying, scrubbing, bill paying, and most of the laundry, the facts were simply not on his side. By recharacterizing my complaint in terms of the gestalt of mature relationships, he avoided admitting fault and kept open the possibility of resolving the dispute on favorable terms.3
My husband’s characterization technique holds many lessons for legal education. Indeed, the device is indispensable to the job of lawyering. Although many rhetorical devices are useful and common in legal discourse,4 this one pops up everywhere—in and out of formal legal venues.5 Lawyers characterize in court papers, oral argument, negotiations, mediations, counseling sessions, lobbying, and media relations. The technique thus calls out for someone to analyze it, to catalog a cross-section of examples, and to study how best to teach it to others. To this task I devote the first part of this
essay. My research canvassed wildly varying sources and, as it turns out, I found help all over: rhetoricians, educators, historians, linguists, psychologists, and philosophers have all offered analyses that—intentionally or not—illuminate the mechanics and ramifications of characterization.6 I share below “the best” of my survey—with an eye toward synthesizing the diverse knowledge I encountered.
This piece proceeds by staking out new ground, using original terminology, models, and analysis spun from the wisdom of an eclectic collection of scholars. I begin by probing characterization as an important rhetorical technique of our craft.7 Accordingly, I first study how to conceptualize characterization skills and then discuss models I have developed for teaching those skills.
But mastery of characterization technique may bring an alienating sense that the law is but a game of battling characterizations, deployed ruthlessly until a winning characterization ultimately emerges.8 My study is not complete, then, without attention to the dangers of characterization, ideas about responsible use of the technique, and the light that it sheds on the nature of law. In discussing these concerns in the latter part of the article, I explore other pedagogical implications of characterization technique. In particular, I submit that study of characterization not only offers an opportunity to understand and refine an important skill, but also reveals a more general message for lawyering and legal education. Because characterization appears outside the lawyer’s “job”—in all aspects of life—study of the technique can help show how “legal” arguments reflect our daily life outside the law.9
For law students, judges, and lawyers generally, this connection is a crucial part of understanding how the law business works. This may especially invigorate newcomers to law study, when they realize that techniques they have already refined in order to please, to evade, to cajole, and to persuade others are also important to skillful lawyering. Similarly, understanding the connection between “personal” life and the law can help students overcome the apparently wooden formality of the law and sensitize them to the true impact of the law on people’s lives. Once students appreciate this connection, they may more fully appreciate the importance of their future legal work and their responsibility toward others. For it is not, after all, a mere word game we lawyers are involved in, but a grave human activity with serious consequences.10 My most ambitious hope is therefore that characterization study will bear benefits not only for the practice of law but, more significantly, for the society that lawyers serve.
I. What Is This Characterization Thing and How Do You Do It?
Patricia J. Williams describes a childhood debate with her sister over the color of sunbaked asphalt. Williams saw it as black, her sister saw it as purple. Williams ultimately persuaded her sister to admit the road was black, although their father “gently pointed out” that the sister still actually saw it as purple. From this experience, Williams tells us she learned “that it really is possible to see things—even the most concrete things—simultaneously yet differently; and that seeing simultaneously yet differently is more easily done by two people than one, but that one person can get the hang of it with time and effort.”11 For Williams, this skill is crucial to bridging gaps of perception, to hearing alternative voices, and to celebrating differences among people. Her story, however, holds meaning for the more mundane project I present here.
First, Williams’s story drives home the idea that different characterizations emerge from a given set of circumstances. I don’t struggle here with the question whether these characterizations somehow reflect the “essence” of the circumstances or are simply the result of perception differences. What is important to my project is Williams’s suggestion that different perspectives on the same occurrences are an unavoidable part of life.12 Her story goes even further, however, by valuing the ability to perceive the different perspectives. She thus sees characterization as both a phenomenon (part of the nature of things) and a skill (a process). Mindful of this complexity, I begin this part by exploring precisely what I mean by “characterization” and by probing different examples.
Williams’s story also holds out hope that we can develop and sharpen our ability to perceive different characterizations or viewpoints. In the second section of this part, I draw on this hope, expounding models for developing new views and perceptions of a given set of circumstances. Finally, I conclude this part with a few guidelines for an advocate deciding which characterization among several serves her ultimate goal.
A. Characterization: A Description
Williams’s story differs from my opening story in one noteworthy respect: the operative characterization takes place at a different point in the dispute’s structure. My husband’s characterization occurred at the foundational level of our dispute, focusing on the formulation of the problem between us. The Williams sisters appeared to agree on the problem’s formulation (that is, what was the color of the road?) and instead disagreed only on the problem’s answer. Despite this difference, the two stories both illustrate that people can derive different perceptions from the same set of facts or circumstances. The term characterization embraces the many possible permutations on this process of developing and appreciating different perceptions.
1. Constructive and Destructive Characterization
Characterization includes both constructive and destructive forms of argument. Constructive characterization presents a fresh angle on a given set of facts, an angle that differs from one’s opponent’s.13 Destructive characterization is an attack technique focusing on the opponent’s presentation and showing why the presentation is unworthy of credit. Most, if not all, characterizations include both constructive and destructive elements. For example, the wordplay between Pat Williams and
her sister is a predominantly constructive interchange, since the sisters offered two different views of the same phenomenon: the street is black versus the street is purple. Yet the interaction also included destructive elements, since the assertion that the street is purple implicitly denies that it is black. Sometimes an attack is even more difficult to pigeonhole as predominantly constructive or destructive. For example, my husband’s characterization in our division-of-labor dispute is destructive because it casts my approach as immature and harmful to our marriage. On the other hand, his argument is constructive because it proposes a new angle on the dispute, suggesting that we should concern ourselves with nourishing a mature human relationship, not keeping track of who does what around the house. (Of course, even from this perspective, the constructive characterization has destructive undercurrents to the extent that it rejects my original perspective on the dispute or can be interpreted as a disrespectful power play.)
Although the two characterization techniques are often difficult to segregate, an advocate can often sort various arguments according to whether they reflect predominantly constructive or destructive attitudes and techniques for formulating and disposing of problems. The advocate will likely find the constructive/destructive distinction useful in formulating her strategy. Indeed, she will discover that constructive characterization is by far the more likely to persuade. First, constructive characterization honors the principle that an advocate should select the most congenial (or least disagreeable) approach to the case.14 In so doing, the advocate maintains the good will and positive energy that may be essential for achieving a desired result. Even more important, constructive characterization offers an alternative resolution to the problem. This is obviously more appealing than destructive characterization, which—if successful—simply undermines the proffered resolution of a problem. For these reasons, I focus my efforts here on constructive characterization.
I do not mean to suggest that destructive characterization is a weak rhetorical tool. In many of life’s occasions, one can “win” simply by showing that one’s opponent has performed pitifully—or, to use a legal analogy, has not met her burden of proof. Within law practice, many tasks actually formally require an advocate to press into service her destructive characterization skills. For example, in crossexamining and impeaching witnesses, the advocate tries to undermine her opponent by exposing such things as a witness’s inconsistencies, suspect demeanor, incompetency, bias, corrupt motive, prejudice, or prior bad acts.15 Even outside the courtroom, destructive characterization techniques are useful for obtaining strategic advantage, casting a shadow over one’s opponent and—perhaps most important—creating an atmosphere receptive to a new perspective on the dispute. Indeed, an advocate preparing to ready the field for a fresh characterization may benefit from the devastation resulting from destructive characterization.16
2. The Temptation of Direct Negation
There is one type of confrontational argument that’s arguably not a form of characterization at all. I call the argument “direct negation” and discuss it early because it helps to define effective characterization technique. When deploying the direct negation tactic, an advocate simply insists on the opposite of what her opponent offers. That is, in words or spirit, the advocate shouts “NOT!” in response to her opponent.17 In my opening example, my husband would be using this tactic if he claimed I was wrong about the amount of work he was doing around the house.
Unlike characterization, direct negation has limited persuasive power. Chances are decent that one’s opponent would not venture a particular proposition unless it had at least some foundation and a possibility of success.18 As an empirical matter, then, an argument based on direct negation may be unlikely to persuade. Characterization, by contrast, respects the opponent’s chances of succeeding on her own terms—and instead concentrates on changing those terms.
Tactically, direct negation may also give unnecessary credence to the opponent’s formulation of the problem giving rise to the dispute. As Duncan Kennedy explains, “Argument by denial means accepting the relevance of your opponent’s argument but denying one of its factual and normative premises.”19 In contrast to many forms of characterization, direct negation thus must actually validate at least part of the opponent’s perspective on the dispute.
Finally, the simplicity of direct negation may undercut its effectiveness. By painting a dispute in black-and-white terms, direct negation suggests that one frame of reference accurately describes the dispute and that—under that frame of reference—someone must win, and someone must lose.20 Constructive characterization, on the other hand, broadens the range of circumstances under which one might get what one wants (or at least an approximation).21 As an argumentation technique, characterization, rather than direct negation, more closely tracks the vision of rhetoric originally propounded by Aristotle:
[The function of rhetoric] is not simply to succeed in persuading, but rather to discover the means of coming as near such success as the circumstances of each particular case allow. In this it resembles all other arts. For example, it is not the function of medicine simply to make a man quite healthy, but to put him as far as may be on the road to health; it is possible to give excellent treatment even to those who can never enjoy sound health.22
Just as my husband could not change the fact that I was doing most of the work around the house, he could not restore our relationship to perfect function. Nevertheless, his reframing of the housekeeping debate did considerable damage control and contributed significantly to his strategic position.23 Greed (or impatience) might have encouraged him to try to obliterate my assertions with one swipe. Yet he was unlikely to succeed because the facts did not support this approach. He was well advised to suggest an entirely new perspective in order to soften the force of my argument.
It is the apparent promise of removing the opponent’s argument swiftly and directly, I believe, that makes direct negation so alluring. Psychological theory supports this hypothesis, suggesting that most people are inclined to avoid ambiguity by reducing conflicts in their lives to one clearly right position and one clearly wrong position.24 Interestingly, judicial opinions reflect this tendency, so often suggesting that the outcome of the case is clear-cut, without doubt or moral complexity.25
Although constructive characterization may not share the simplicity of direct denial, the technique can increase an advocate’s chances for achieving something close to her goal. Constructive characterization can draw on a range of perspectives to a dispute and allow the advocate to identify the viewpoint most amenable to her position. In other words, she is not straitjacketed by a preconceived framework for argument, but can tailor her rhetorical strategy to the circumstances. Should she fail to persuade others that her characterization of the dispute is the one they should adopt, she at least has introduced the possibility that other perspectives on the dispute exist. The recharacterization can therefore serve as an antidote for gridlock, breaking up disputants’ cemented positions by inviting yet another characterization that may resolve the conflict.
Persuasion, of course, focuses on the goal of convincing someone of a certain proposition.26 The first lesson of characterization, however, is to avoid being rigid in one’s choice of propositions or in the possible routes to those propositions. How then does one open up the possibilities? How does one develop the skills of refocusing, redefining, and recharacterizing?
B. The Building Blocks for Characterization
An advocate seeking to characterize a situation must first identify what I call the “impetus” for her rhetorical effort: the circumstances giving rise to a problem or dispute.27 Using this springboard, the advocate can begin to refine alternative perspectives on a controversy.
I begin this section by exploring ways of defining the impetus for rhetorical effort. With this background, I turn to models for an advocate defining the impetus, planning a response, and searching for alternative visions of a controversy. The models focus on constructive characterization technique, exploring alternatives for creating a new definition of the controversy, rather than merely destroying the opponent’s definition. I conclude this section by reviewing concepts to help an advocate select among alternative characterizations emerging from the models.
1. Impetus
Rhetorical discourse is generally reactive in the same way that “an answer arises out of a question.”28 Just as a question shapes the scope of an answer,29 the impetus for rhetorical discourse should guide its response.30 Accordingly, an advocate is best advised to reflect on the need for her rhetorical effort before proceeding.
I do not suggest, of course, that there exists a static and “true” set of facts and circumstances that one can discover and preserve with the label “impetus.” In fact, an advocate will fail at characterization unless she is flexible in perceiving, defining, and redefining the impetus. In other words, a creative response to a situation calling for rhetorical effort begins with an advocate’s understanding that she enjoys considerable latitude in interpreting, framing, and dividing the characteristics of a situation.31
This being so, the advocate still needs an appropriate place to start her creative effort.32 One possibility is that her opponent has already fired a welldefined salvo, thereby providing a possible focal point for the advocate to begin her efforts. For example, in my opening scene, my husband treated my own formulation of the marital dispute—a fair-share-of-housework problem—as the impetus for his rhetoric. He responded by redefining the impetus as a part of the larger question of how to run a marriage.
In other disputes where no party has yet drawn a clear picture of the problem, the advocate may do her best to sketch an image of the problem that accommodates differing perspectives and then to focus her rhetorical effort on that image. In my marital example, she could define the dispute as a problem pertaining to household labor and married persons and proceed from that basis.
I emphasize, however, that the most important lesson for the advocate is to be open-minded in choosing her starting point. In fact, an advocate may conclude that it is best to avoid paying much attention to her opponent’s initial salvo in the dispute, deciding instead to offer her own initial representation of the impetus for the dispute. In addition, the advocate undertaking the characterization process may want to target only a portion of what she perceives as the impetus. Similarly, she may even choose to emphasize a portion of the impetus that does not suggest itself as closely related to the dispute.
The models and techniques discussed below can help the advocate target an appropriate portion of the impetus. They are intended to serve the lawyer developing a strategy—whether or not an opponent has already spoken. But before considering the specific models, I offer the following introduction to piecemeal characterization strategy, which reflects specific advocates’ assessments of what is most important to a dispute.
As media spin-meisters in the defense of O. J. Simpson, Simpson’s lawyers began their work immediately after his arrest, trying to cast him in a human, sympathetic light. They trumpeted before the media details of Simpson’s psychological turmoil, his sadness over passing Father’s Day in jail, and his mother’s despair.33 The lawyers even made a motion in the public courtroom requesting that prison officials provide Simpson with a pillow.34
In general terms, the impetus for Simpson was the accusation from officials that he murdered his ex-wife and her friend. Given this impetus, his lawyers no doubt turned immediately to murder-scene investigation and details of Simpson’s alibi. Nevertheless, they confined their early rhetorical efforts to a less obvious, “humanizing” strategy; in so doing, they defined the impetus—for rhetorical purposes—as the “attack” on Simpson as a human being. They set aside, for later spinning, the broad range of details about the murders themselves.35
Slicing off only a portion of the problem facing their client, the lawyers placed primary importance on casting Simpson as a likeable man incapable of performing heinous acts of murder. This tactic apparently proved potent. Indeed, the not-guilty verdict may be rooted in a nice-guy aura that stuck to Simpson throughout the long, slow trial, preserving the presumption of innocence or, at least, instilling a reasonable doubt in the minds of the jurors.36 In this way, his lawyers exerted some control over a process largely dominated by law enforcement, created their own image of O.J. Simpson, and eventually overcame the more general impetus—the murder charges against him.37
Laura E. Little, Characterization & Discourse, was first published at 46 J. Leg. Educ. 372 (1996). © 1996 Association of American Law Schools; Laura E. Little. Reprinted with permission. The article has been reprinted with only minor modifications in formatting, and the original footnote citation format has been retained.
* Laura E. Little is Associate Professor of Law at Temple University. I, of course, owe special thanks to my husband, Richard Barrett, for his creative arguments that inspired this essay and his gracious permission to use them as the centerpiece of my study. For helpful comments, ideas, and encouragement, I thank Scott Burris, Finbarr McCarthy, Richard Greenstein, Muriel Morisey Spence, Theresa Glennon, Nancy Knauer, Katherine Hatton, Edward Ohlbaum, Jane Baron, and Jeffrey Dunoff. Carolyn Parisot and Keri Kellerman provided excellent research assistance. Financial support from Temple Law School also made this article possible.
1 The term is from Jennifer Jaff, Frame-Shifting: An Empowering Methodology for Teaching and Learning Legal Reasoning, 36 J. Legal Educ. 249 (1986).
2 More technically, some scholars may call this method a subset of “legal semiotics.” See, e.g., Duncan Kennedy, A Semiotics of Legal Argument, in 3 Law & Semiotics 167, ed. Roberta Kevelson (New York, 1989), reprinted in 42 Syracuse L. Rev. 75 (1991) [Subsequent page references are to Law & Semiotics]; Jeremy Paul, The Politics of Legal Semiotics, 69 Tex. L. Rev. 1779 (1991).
3 Some who know us both are surprised that my husband survived at all after delivering his checklist argument. Nevertheless, we have found an equilibrium on the housekeeping issue, and both he and our marriage appear to be thriving.
4 I use discourse as a term of art, meaning “an organization” of utterances “which progresses across time” and “aims to achieve a particular goal.” Jean Caron, An Introduction to Psycholinguistics, trans. Tim Pownall, 153 (Toronto, 1992).
5 For a diverse array of contexts in which this subject arises, See Elizabeth Kolbert, Shifting Public Opinion by a Turn of Phrase, N.Y. Times, June 5, 1995, at A1; Arnold Hauser, Mannerism: The Crisis of the Renaissance and the Origin of Modern Art, trans. Eric Mosbacher & Arnold Hauser, 121 (New York, 1965).
6 Of all the disciplines that I surveyed, rhetoric is perhaps the most pertinent to my study. Having observed this, I note that the term rhetoric means different things to different people. Plato’s dialogs record Gorgias’s definition of rhetoric as “the art of persuading the people about matters of justice and injustice in the public places of the state.” James Boyd White, Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and Communal Life, 52 U. Chi. L. Rev. 684, 684 (1985) (citing Plato, Gorgias 452e, 454b). White summarizes two modern views of rhetoric: “the art of establishing the probable by arguing from our sense of the probable” and “the ignoble art of persuasion.” Id. at 687. Analyzing the discipline in light of the law, White offers a third view, his own: The establishment of comprehensible relations and shared meanings, the making of the kind of community that enables people to say “we” about what they do and to claim consistent meanings for it—all this at the deepest level involves persuasion as well as education, and is the province of what I call constitutive rhetoric. Id. at 693. For other studies of the connection between rhetoric and the law, see Austin Sarat & Thomas R. Kearns, Editorial Introduction, in The Rhetoric of Law, eds. Austin Sarat & Thomas R. Kearns, 1, 3 (Ann Arbor, 1994) (“It may be that analysis of law’s rhetoric is more than aesthetic self-indulgence, but rather is part and parcel of a political and ethical project whose object is the transformation of law in the name of a justice all too rarely spoken about in the profession of law.”); Peter Goodrich, Legal Discourse: Studies in Linguistic, Rhetoric, and Legal Analysis 88 (New York, 1987) (exploring proposition that “legal discourse” is “preeminently the discourse of power”); Gerald B. Wetlaufer, Rhetoric and Its Denial in Legal Discourse, 76 Va. L. Rev. 1545, 1555 (1990) (propounding the thesis that “law is rhetoric but the particular rhetoric embraced by the law operates through systematic denial that it is rhetoric”).
7 Of all the “jobs” lawyers perform, I focus primarily on advocacy, rather than counseling or judging. See generally Karl Llewellyn, The Normative, the Legal, and the Law-Jobs: The Problem of Juristic Method, 49 Yale L.J. 1355, 1373–75 (1940). I also note that my discussion of advocacy may appear more oriented to adversary litigation than to sophisticated negotiation technique. See Roger Fisher & William Ury, Getting to Yes: Negotiating Agreement Without Giving In 14 (Boston, 1981). Nonetheless, because one cannot approach a legal question without characterizing, my observations are obviously relevant to all the jobs a lawyer may be called upon to do. See also Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession 121–62 (Cambridge, Mass., 1993).
8 See Duncan Kennedy, Note, How Law School Fails: A Polemic, 1 Yale Rev. L. & Soc. Action 71, 76–78 (1970); Patrick Wiseman, Legal Education and Cynicism About the Law: Practicing Ethical Jurisprude in the Classroom, 25 Cumb. L. Rev. 1, 5 (1994).
9 Others share this intuition. See, e.g., Julius G. Getman, Voices, 66 Tex. L. Rev. 577, 579 (1988); White, supra note 6, at 699; Gerald P. López, Lay Lawyering, 32 UCLA L. Rev. 1, 2 (1984).
10 Jeremy Paul, A Bedtime Story, 74 Va. L. Rev. 915, 925 (1988); see Robert Cover, Violence and the Word, 95 Yale L.J. 1601, 1601 (1986); Wetlaufer, supra note 6, at 1545.
11 The Alchemy of Race and Rights 149–50 (Cambridge, Mass., 1991).
12 Complex philosophical questions, it seems, are imbedded in this suggestion. For example, Williams’s suggestion reflects one of the starting points of postmodernism. See Peter C. Schanck, Understanding Postmodern Thought and Its Implications for Statutory Interpretation, 65 S. Cal. L. Rev. 2505, 2508–09 (1992) (venturing a definition of postmodernism, including recognition that “[t]here can be no such thing as knowledge of reality” and “all propositions and all interpretations, even texts, are themselves social constructions”). In that regard, the suggestion also appears to reject traditional objectivism. See George Lakoff, Women, Fire, and Dangerous Things: What Categories Reveal About the Mind at xii (Chicago, 1986) (describing objectivism as assuming that “rational thought consists of the manipulation of abstract symbols and that these symbols get their meaning via a correspondence with the world, objectively construed, that is, independent of the understanding of any organism”). Similarly, controversial questions regarding the relationships among language, thought, and perception are implicated here. See Clyde Kluckhohn & Dorothea Leighton, The Navajo 253–93 (Cambridge, Mass., 1974) (studying Navajo language and its effect on “positive predispositions and . . . negative restrictions” on the meanings Navajo people “find in their experience”); Allan Paivio & Ian Begg, Psychology of Language 253–68 (Englewood Cliffs, 1981) (discussing different approaches to the relation between language and thought, including Aristotle’s copy theory and Whorf’s relativity theory). While these debates are clearly relevant to my project, I do not purport to resolve them here.
13 Although I rely on the terminology of an adversarial model, I suggest below that understanding of characterization is useful in pursuing alternative dispute resolution forms.
14 See Edward D. Ohlbaum, Basic Instinct: Case Theory and Courtroom Performance, 66 Temp. L. Rev. 1, 21 (1993).
15 For testament to the destructive quality of these trial techniques, see Lawrence A. Dubin & Thomas F. Guernsey, Trial Practice 123 (Cincinnati, 1991) (“The purpose of impeachment is to convince the trier of fact not to believe the witness.”); Sonya Hamlin, What Makes Juries Listen 221 (New York, 1985) (“[C]ross-examination should make the jury begin to question or doubt what was said on direct examination.”); Richard D. Rieke & Randall K. Stutman, Communication in Legal Advocacy 170 (Columbia, S.C., 1989) (“In order to impeach the witness, counsel designs questions that will demonstrate the oath, the perception, or the recall of the witness is suspect.”). Many recognize, however, the constructive work these techniques can accomplish. See Hamlin, supra, at 221 (suggesting that cross-examination should “redefine the story, or add ingredients or perspectives missing in the direct exam”); Lewis W. Lake, How to Cross- Examine Witnesses Successfully 109 (Englewood Cliffs, 1957) (admonishing lawyers to develop the ability to see benefits that you can develop for your case from statements made against your client); Steven Lubet, Modern Trial Advocacy: Analysis and Practice 55 (Notre Dame, 1993) (arguing that cross-examination can enhance your case, repair damage, and establish foundation). For a linguistic analysis of cross-examination, see Paul Drew, Strategies in the Contest Between Lawyer and Witness in Cross-Examination, reprinted in Language in the Judicial Process 39, eds. Judith N. Levi & Anne Graffam Walker (New York, 1990).
16 Cf. Eric Hoffer, The Ordeal of Change 56–57 (New York, 1963) (arguing that the dissatisfaction of intellectuals makes possible the creativity that “keeps the social order from stagnating,” thereby promoting the advancement of civilization).
17 The law of pleading provides an analog to direct negation in the concept of a denial. See Fed. R. Civ. P. 8(b) (“Denials shall fairly meet the substance of the averments denied.”). Constructive and destructive characterization are analogous to an affirmative defense under Rule 8(b). See 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure, 2d ed., § 1271 (St. Paul, 1990) (describing criteria for identifying an affirmative defense, such as whether the defense arises by logical inference from the complaint’s allegations or whether the plaintiff will be unfairly surprised if the defense is not revealed until late in litigation).
18 Cf. Edward de Bono, Lateral Thinking: Creativity Step by Step 120 (New York, 1970) (“No one is silly for the sake of being silly no matter how it might appear to other people.”).
19 Kennedy, supra note 2, at 173.
20 In recent writings on legal argumentation, Duncan Kennedy and several scholars expounding on his work focus much analysis and criticism on pairings of legal arguments. The notion of argument pairings bears kinship to the technique of direct negation; both concepts embody the idea that for every proposition propounded in legal argument, there is a competing proposition. See Jack M. Balkin, The Crystalline Structure of Legal Thought, 39 Rutgers L. Rev. 1, 2–13 (1986) (introducing “dyadic” logic for analyzing rule choices); Kennedy, supra note 2, at 170–72 (discussing “argument by maxim and countermaxim”); Paul, supra note 2, at 1782 (discussing literature on competing argument pairs in legal reasoning). The literature on argument pairs contributes invaluably to understanding the law. In addition, the literature avoids oversimplifying legal argumentation, reflecting sensitivity to the notion that legal arguments do not necessarily travel in perfect black-and-white opposites. See Balkin, supra, at 7 (analysis “does not assume that rules have a single, natural ‘opposite’ ”); Kennedy, supra note 2, at 175–80 (discussing legal arguments that include argument pairings that are not necessarily in symmetrical opposition). Acknowledging these virtues, I nevertheless believe that the literature’s strong emphasis on argument pairings could—if misused—limit students to a bipolar view of available arguments, blinding them to fresh angles or perspectives on a dispute. Cf. Edward P. J. Corbett, Classical Rhetoric for the Modern Student 29 (New York, 1971) (“When men deliberate about a course of action, the choice is not always between a good and an evil; sometimes the choice is between two or more goods.”). Overemphasis on argument pairings could also obscure the potential for successfully mediated resolutions of disputes.
21 Cf. Kennedy, supra note 2, at 173: When I say, “I am French,” and you respond, “No, you are not French,” there is less going on, less complexity to deal with, than if you responded, “I don’t understand your agenda.” Kennedy argues that adding “not” to your opponent’s statement performs “an operation” on the statement, but does not add an entirely new thought. Id.
22 Rhetoric, in 9 Great Books of the Western World, eds. Robert Maynard Hutchins et al., 587, 594–95 (Chicago, 1952) (reprinted from The Works of Aristotle, ed. William David Ross (Oxford, 1908)).
23 Chaim Perelman echoes the notion that rhetoric does not necessarily focus on perfect results. See Chaim Perelman & L. Olbrechts-Tyteca, The New Rhetoric: A Treatise on Argumentation, trans. John Wilkinson & Purcell Weaver, 4 (Notre Dame, 1969) (defining rhetoric as “the study of the discursive techniques allowing us to induce or to increase the mind’s adherence to the thesis presented for its assent”); Allen Scult, Perelman’s Universal Audience: One Perspective, 27 Cent. States Speech J. 176, 178–80 (1976) (explaining Perelman’s position that complete persuasion is not possible). Perelman further explains his view: “[A]rgumentation aims at a choice among possible theses; by proposing and justifying the hierarchy of these theses, argumentation seeks to make the decision a rational one.” Perelman & Olbrechts-Tyteca, supra, at 62. Apparently in accord with this view is the instrumental approach offered by Kenneth Burke: “[T]he basic function of rhetoric [is] the use of words by human agents to form attitudes or to induce actions in other human agents.” A Rhetoric of Motives 41 (New York, 1950).
24 See Donald N. Levine, The Flight from Ambiguity: Essays in Social and Cultural Theory 12–13 (Chicago, 1985) (describing studies concluding that tolerance of ambiguity is highest among “creative individuals and the emotionally incapacitated”); 1 Jane Loevinger & Ruth Wessler, Measuring Ego Development 3–8 (San Francisco, 1970) (placing tolerance of ambiguity at the highest stage of cognitive development—a level shared by fewer than one percent of people in most social groups). Psychologists sometimes refer to the stark separation of phenomena into good and evil as “splitting,” identified as a process used as a defense by persons with personality disorders. See Melanie Klein, Envy and Gratitude and Other Works 1946–1963, at 5–22 (New York, 1975).
25 Scott Altman, Beyond Candor, 89 Mich. L. Rev. 296, 305–06 (1990); see Laura E. Little, An Excursion into the Uncharted Waters of the Seventeenth Amendment, 64 Temp. L. Rev. 629, 653 (1991) (noting common tendency of courts to avoid important and provocative arguments contrary to their ultimate decisions). Wetlaufer argues that the rhetoric of law “operates by predisposing us to render as black and white that which is gray. However, our rhetoric of certainty and closure, which is always useful, is rarely necessary. It serves, perhaps falsely, to enhance the claim that we are right and they are wrong.” Wetlaufer, supra note 6, at 1589–90.
26 Cf. Goodrich, supra note 6, at 92 (“Rhetoric studies the linguistic means that allow a chosen end to be achieved.”); Perelman & Olsbrechts-Tyteca, supra note 23, at 4 (describing rhetoric as the study of methods of proof “allowing us to induce or to increase the mind’s adherence to the theses presented for its assent”).
27 Lloyd F. Bitzer calls this the “exigence,” which he defines as “something waiting to be done, a thing which is other than it should be.” The Rhetorical Situation, 1 Phil. & Rhetoric 1, 6 (1968). Things that cannot be changed—like “death, winter, and some natural disasters”—are not rhetorical exigencies for Bitzer, presumably because no amount of talk will eliminate them. Id. He adds that “an exigence which can be modified only by means other than discourse is not rhetorical.” Id. at 6–7. Many, of course, would challenge Bitzer’s suggestion that some phenomena have an essential core that cannot be influenced through rhetoric.
28 Linda Levine & Kurt M. Saunders, Thinking Like a Rhetor, 43 J. Legal Educ. 108, 115 (1993).
29 Unless, of course, the context is one such as a presidential debate where the person answering the question has such a compelling agenda that she simply answers the question with a predetermined speech.
30 What I call the “impetus” is similar to what Aristotle referred to as the acquisition or invention (inventio) of argumentative starting points. See Goodrich, supra note 6, at 92–93.
31 I leave for another day what limits, if any, constrain the advocate in her construction of reality. As my colleague Scott Burris queries: “You can argue about whether A killed B in selfdefense, but you can’t say B is alive—right?” One contemporary approach to the intractable problem of delineating the boundaries of “acceptable” and “unacceptable” perceptions focuses on social consensus or community as the guidepost. See, e.g., Mark Kelman, A Guide to Critical Legal Studies 14 (Cambridge, Mass., 1987); Owen M. Fiss, Objectivity and Interpretation, 34 Stan. L. Rev. 739, 745 (1982); cf. Eleanor W. Myers, “Simple Truths” About Moral Education, 45 Am. U. L. Rev. 823, 856–57 (1996) (“[S]olutions to [professional responsibility] dilemmas may emerge from shared moral consensus. Where there is no consensus, we can still acknowledge that some answers are better than others.” (footnote omitted)). For analysis of how shared consensus is constructed, See generally Lawrence Lessig, The Regulation of Social Meaning, 62 U. Chi. L. Rev. 943 (1995).
32 Cf. White, supra note 6, at 699 (“The rhetorician must first of all master the starting points from which he or she is to proceed, then the methods by which he or she can move, in one direction or another, from the point so established.”); William Safire, Dee-cline Dee-fense, N.Y. Times, Jan. 22, 1995, § 6 (Magazine), at 14 (“What separates genuine phrasedicks from ordinary researchers? The ability not only to find the right book, but also to figure out what categories or entries to try.”).
33 See B. Drummond Ayers, Jr., Prosecutor Sees Simpson Case as ‘Solid’ One, N.Y. Times, June 20, 1994, at A1, A12.
34 Jodi Enda, In court, Simpson says he’s innocent, Philadelphia Inquirer, June 21, 1994, at A1, A6.
35 For support for the assumption that Simpson’s lawyers planned their strategy in order to influence media coverage of the case, see Robert L. Shapiro, Using the Media to Your Advantage, Champion, Jan.-Feb. 1993, at 7. In this article written before the Simpson murders, Simpson’s counsel outlines strategies for defense counsel to manipulate the media in highprofile cases. Shapiro begins his article with the following advice: “The first impression the public gets [of a criminal case] is usually the one that is most important.” Id.
36 But see James S. Kunen, My O.J. Problem: Just Who’s the Underdog? N.Y. Times, Oct. 8, 1995, at F10.
37 Interestingly, Stephen Jones, the lawyer for Oklahoma City bombing suspect Timothy McVeigh, appeared to pursue the same strategy at the commencement of McVeigh’s defense, seeking to present McVeigh as “the boy next door, the boy wonder.” Pam Belluck, McVeigh Says He’ll Plead Not Guilty, N.Y. Times, June 26, 1995, at A8.
38 As I have said, this essay’s focus is on advocacy. But the characterization models may be equally useful where a lawyer is engaged in other activities such as trying to understand a client’s perspective or formulating alternatives in a counseling session.