Brush Up Your Aristotle
Robert F. Hanley**
Demosthenes of Athens was the greatest orator of ancient Greece. His eloquence, says Professor Epiphanius Wilson, was of unique power.
According to Professor Wilson: "It is the intellectual grasp, the trenchant vehemence, the face and vigor of the orator that affect us." Demosthenes scorned mere ornaments of rhetorical finish. "Yet his language has all the living glow, all the purity, all the transparency that belongs to the best age of attic Greek . . . ."
How did he do it? Can he light the fires of today's advocates?
Demosthenes' oratory was simple and unadorned. He used it in a lifelong struggle against Philip II of Macedonia (hence the term "philippic"). Demosthenes justifiably feared that Philip intended to extinguish Greek liberty.
By his words, Demosthenes drew the Thebans into a confederacy against Philip. The Thebans at the time were the best soldiers in the world, but, according to Plutarch, they
had before their eyes the terrors of war and their losses in the Phocean troubles were still recent; but such was the force and power of the orator [Demosthenes] fanning up . . . their courage and firing their emulation that casting away every thought of prudence, fear or obligation in a sort of divine possession, they chose the path of honor, to which his words invited them, and this success, thus accomplished by an orator, was thought to be so glorious and of such consequence that Philip immediately sent heralds to entreat and petition for a peace . . . .
What Demosthenes was to Greek advocacy, Marcus Tullius Cicero was to Roman advocacy.
Plutarch tells us: "For Cicero, it may be said, was the one man, above all others, who made the Romans feel how great a charm eloquence lends to what is good."
These were powerful advocates.
In a school for trial lawyers, Cicero's De Oratore and Demosthenes' Orations should be required reading.
The students' heads should be filled with excellent advocacy—from the classics to the trials of Edward Bennett Williams—and with the literature of trials—from Aristophanes, Tacitus, and Shakespeare's Julius Caesar, Henry V, and Richard II to Wordsworth's Character of the Happy Warrior. The students would read great speeches too: Henry George's "The Curse of Poverty," Abraham Lincoln's "A House Divided," and Adlai Stevenson's "There Are No Gibraltars."
They would discover power through simplicity, grace, and unadorned sincerity.
Then, when they are panting to learn how to duplicate these masterpieces, they should be hit with a good solid dose of Aristotle's Rhetoric and Quintilian's Institutes of Oratory.
These were geniuses who knew how to make language work. There were few writers of rhetoric before them. There were few teachers. What they had was a magnificently sensitive power of observation. They learned by raw observation of human behavior what makes arguments tell—how to persuade, how to change the minds of biased listeners.
Lane Cooper, in his book The Rhetoric of Aristotle, says that Aristotle's treatise on rhetoric is one of the world's best and wisest books. It is a book to be chewed and digested. It is the greatest of all books on the philosophy and technique of persuasion. The work is "a textbook of human feeling; a storehouse of taste; an example of condensed and accurate, but uniformly clear and candid, reasoning."
Aristotle created the art of rhetoric, and no work on the subject since is comparable. It stands apart and above.
Aristotle's Rhetoric is essential reading for anyone who would persuade others. Aristotle's Rhetoric taught Cicero and Quintilian, and its basic precepts serve as anchors to every good book ever written on persuasion. It is amazing how modern, how relevant, how robust, how untrite his treatise on the art of persuasion remains today. Read Aristotle, and learn how to frame an argument.
Aristotle stresses the importance of knowing one's audience. The advocate must be a psychologist. He must understand human nature, and he must know how his listeners think, their habits, desires, and emotions.
Today, we use jury surveys to tell us who we are talking to. Gerry Spence says he uses his belly. Aristotle used his powers of observation. Observing his audience, he decided what kind of argument would be most persuasive. He watched his listeners, and he knew what sort of emotional appeal they would accept. Aristotle tells us what kinds of words, phrases, and organization of ideas will move which audiences. His emphasis is on the nature of the person to be persuaded. He teaches us how to use a combination of logic, empathy, and emotion.
His concept of ethos is worth careful study. Aristotle uses "ethos" to mean the manifest character of a person, group, or culture. The ethos of the speaker must be good, for the audience will not side with an advocate they do not trust. If there is one characteristic common to successful advocates, it is the ability to project sincerity.
Aristotle teaches that a persuasive speech not only convinces through argument; it must evince the right character (ethos) of the speaker and bring the audience into the right state of feeling. The speech should show the speaker to be a person of intelligence, virtue, and goodwill. Such a speaker wins the confidence of his audience.
A successful advocate must also be able to tell and act out a story, to organize its pieces so his listeners can put it together for themselves. In life, people make decisions first and then find the arguments to rationalize them, though rarely is this sequence consciously appreciated. Few people argue matters out, either in their heads or with their friends, and make their decisions based on the results of the debate. Human beings may be a rational species, but, more often than not, the reason proceeds from the emotion, not vice versa. These basic insights come booming forth from Aristotle's text. He points out the necessity of a theme that will win the mind of the listener. If the theme is convincing, the arguments will fall into place.
A trial lawyer could profitably spend time studying Aristotle's concept of the enthymeme. He tells us that enthymemes are the essential instruments of persuasion.
An enthymeme is a kind of syllogism with two parts rather than three. In an enthymeme the minor premise is taken for granted instead of being expressed. If this sounds theoretical, it is not. It is the way to explain a powerful mode of communication. An example will show how it works.
Aristotle did not use full-blown syllogisms. He would not say:
All men are mortal;
Socrates is a man;
Socrates is mortal.
Instead, he would employ the enthymeme:
Socrates is a man;
he is mortal.
The point is, it is an effective way to argue. Syllogisms are for professors. They have a tone of condescension. Persuasive speakers use enthymemes. The audience does not have the time or patience to follow syllogisms.
An enthymeme is a great deal more than a truncated syllogism. It is a powerful form of argument. You begin with an easily accepted truth, and you proceed to an inevitable conclusion. St. Paul and Lincoln were among the post-Aristotelian rhetoricians who built speeches of unbelievable power using enthymemes as their foundations.
Take Lincoln's Gettysburg Address. It is an emotional power-house. Yet it depends for its effect largely on unstated but indisputable assumptions, not on explicit hard sell.
Aristotle teaches us the same technique. Be quiet; use examples whose lessons are inescapable, but let the listeners discover the conclusions for themselves.
For today's trial lawyer, the moral is the value of the implicit. A prosecutor should not say, "You should be outraged at the conduct of the defendant." Instead, he should simply tell the story of what the defendant did, and let the jurors discover the outrage for themselves.
Irving Younger tells us that, in cross-examining the defendant's mother, you should not ask: "As the defendant's mother, Madam, you would cheat for, you would steal for, you would lie for your son; wouldn't you?" Just ask the witness quietly, "Madam, you are the defendant's mother?" Then sit down. The implicit message is inescapable, and it will sound all the louder if left unsaid. Lead the jurors to the conclusion you want them to embrace, then let them believe they found it themselves.
Aristotle points out that rhetoric is an art that students can acquire. The essence of persuasion lies in the arguments or proofs. Proofs are so much more important than the emotional appeals that many poor speakers stress. But emotions also have a place in Aristotle's rhetoric.
Aristotle recognized that most audiences are untrained in rigorous thinking and unable to follow long, involved arguments. So the listeners' emotions are what we in the twentieth century might call battery rechargers. The emotions invigorate the listener's minds and keep their interest alive.
Happiness is an important word to Aristotle. He points out that all men aim at happiness and that upon it all effective exhortation, persuasion, and dissuasion turn. The advocate must be familiar with the popular conception and the main constituents of happiness. Happiness is prosperity joined with virtue. It is a self-sufficient existence. It is the pleasant life with security, a thriving estate with the ability to use and preserve it. It involves the possession of internal goods of the soul and the health of the body, as well as external goods.
Aristotle sets out the constituents of happiness, including good birth, children, wealth, reputation, homes, health, beauty, strength, size, a good old age, friends, good looks, and virtue. Recognize that those are the qualities your audience yearns for. Show them how the acceptance of your argument is consistent with the constituents of their happiness.
Aristotle also talks about anger and how to arouse it against an opponent. He treats love, friendship, and hatred, as well. We learn about fear and confidence, shame and shamelessness, benevolence and the lack of benevolence, pity, indignation, envy, emulation, and contempt.
He analyzes the character of age and talks about how the advocate should take the age of his audience into consideration.
If you represent a defendant or a respondent, you might do well to read Aristotle on refutation. He tells us that we can refute an argument either by a counterargument or by an objection. Objections can be raised in four ways: by attacking your opponent's premise, by bringing forward a premise like it, by bringing one contrary to it, or by citing a previous decision. He gives examples of each method.
Having previously dealt with the sources of persuasion—like working on the emotions of the audience, giving the audience the right impression of the speaker's character, and convincing the audience with proof—Aristotle, in the third book of his Rhetoric, moves on to style: how the speaker expresses himself. The book deals with choice of words, syntax, and delivery.
His treatment of delivery has a modern ring. He explains that the whole point is to make an impression on an audience. Good style is, above all, clear. Clarity is achieved through the use of nouns and verbs that are in current use. Naturalness is endearing, artifice a turn-off.
Robert F. Hanley, Brush Up Your Aristotle, was first published at 12 Litig. 39 (No. 2, 1986). © 1986 American Bar Association, Robert F. Hanley. Reprinted with permission.
** Editor's Note: At the time this article was written, the late Robert F. Hanley was a partner in Morrison & Foerster in Denver, Colorado.
The article has been reprinted with minor modifications in formatting.