Rhetoric Theory and Legal Writing: An Annotated Bibliography
Michael R. Smith*
This volume of the Journal of the Association of Legal Writing Directors (J. ALWD) contains articles relating classical and contemporary rhetoric theory to the practice of professional legal writing. This bibliography supplements these articles by setting out a list of other works that have been written in this growing area of legal writing scholarship.
The scope of this bibliography is limited in two ways. First, the works listed here focus primarily on how rhetoric theory applies to the discipline of legal writing. While rhetoric is a discipline unto itself, only a few works on general rhetoric theory have been listed here. Moreover, although rhetoric theory has been explored and applied in a number of other disciplines outside the law such as forensics and debate, advertising, business writing, and communication, no works from these other disciplines have been included. Except for a few seminal background works, the only works listed here are those that specifically apply rhetoric theory to legal writing or to legal advocacy or to both.
The first limitation implies the second. This bibliography lists works that focus on rhetoric theory and legal writing; it does not list more generally works that focus on rhetoric theory and "the law." A number of legal scholars have produced scholarship that explores the implications of rhetoric theory on various facets of the law such as distinct areas of doctrinal law, various legal institutions, and various schools of legal theory and jurisprudence. This bibliography, however, in keeping with the purpose of J. ALWD, focuses only on works that explore the relationship between rhetoric theory and legal writing and advocacy. Works that explore the implications of rhetoric on other aspects of the law are beyond the scope of this listing.
The works listed here are broken into two main groups which correspond with the two main schools of rhetoric: Classical Rhetoric and Contemporary Rhetoric. These two main groups are further broken down into a number of sub-groups which correspond in turn with various foundational principles within these schools of rhetoric.
I. Classical Rhetoric
Classical rhetoric, which dates back to 450 B.C. Greece, is a discipline that systematically studies the art of persuasion. Although classical rhetoric originally focused on only oral persuasion, it has during its history expanded to written persuasion. In view of classical rhetoric's comprehensive treatment of the subject of persuasion, it comes as no surprise that many modern scholars on legal advocacy are rediscovering this ancient discipline and its time-tested principles. Below you will find a listing of many modern works that apply classical rhetoric principles to contemporary legal writing and advocacy. These works have been grouped together based on their focus on specific principles within classical rhetoric.
A. Background reading in classical rhetoric
As stated in the introduction of this bibliography, no attempt has been made here to list all or even a significant number of works on general rhetoric theory. However, there are a few important works with which anyone interested in classical rhetoric should be familiar. Three of these works are by the three most famous classical rhetoricians of the Greco-Roman era: Aristotle (384-322 B.C.); Cicero (106-43 B.C.); and Quintilian (35-95 A.D.). (There are numerous translations of the works of Aristotle, Cicero, and Quintilian. Four of the most popular are listed here—two for Aristotle, and one each for Cicero and Quintilian.) The other listed work is a modern retelling of the classical works by Edward P. J. Corbett and Robert J. Connors. Although there are a number of modern books on classical rhetoric, the Corbett and Connors text is a perennial favorite.
- Aristotle, On Rhetoric: A Theory of Civic Discourse (George A. Kennedy trans., Oxford U. Press 1991).
- Aristotle, The Rhetoric of Aristotle (Lane Cooper trans., D. Appleton & Co. 1932).
- Marcus Tullius Cicero, Cicero: De Oratore, Books I-II (Loeb Classical Library) (H. Rackham trans., Harv. U. Press 1969).
- Edward P. J. Corbett & Robert J. Connors, Classical Rhetoric for the Modern Student (4th ed., Oxford U. Press 1999).
- Marius Fabius Quintilianus, Quintilian: Institutio Oratoria, Books I-III (Loeb Classical Library) (H. E. Butler trans., Harv. U. Press 1980).
B. Classical rhetoric and persuasive legal writing generally
The following works explore the relationship between classical rhetoric and legal writing and advocacy generally. These works are a good place to start for anyone new to this area of scholarship.
- John W. Cooley, A Classical Approach to Mediation—Part I: Classical Rhetoric and the Art of Persuasion in Mediation, 19 U. Dayton L. Rev. 83 (1993).
- Michael H. Frost, Introduction to Classical Legal Rhetoric: A Lost Heritage (Ashgate Publg. Ltd. 2005) (cross referenced under various sub-topics).
- Michael H. Frost, Greco-Roman Rhetoric: The Canon and Its History, in Introduction to Classical Legal Rhetoric: A Lost Heritage 1 (Ashgate Publg. Ltd. 2005).
- Michael Frost, Introduction to Classical Legal Rhetoric: A Lost Heritage, 8 S. Cal. Interdisc. L.J. 613 (1999).
- Robert F. Hanley, Brush Up Your Aristotle, 12 Litig. 39 (No. 2, 1986).
- Jennifer Kruse Hanrahan, Truth in Action: Revitalizing Classical Rhetoric as a Tool for Teaching Oral Advocacy in American Law Schools, 2003 BYU Educ. & L.J. 299 (2003).
- Linda Levine & Kurt M. Saunders, Thinking Like a Rhetor, 43 J. Leg. Educ. 108 (1993) (cross referenced under Contemporary Rhetoric).
- Dan Levitt, Rhetoric—From Socrates to Court TV, 26 Litig. 42 (No. 1, 1999).
- Ron Moss, Rhetorical Stratagems in Judicial Opinions, 2 Scribes J. Leg. Writing 103 (1991).
- Michael R. Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing (Aspen L. & Bus. 2002) (cross referenced under various sub-topics).
C. Modes of persuasion—logos, pathos, and ethos in persuasive legal writing
One of the foundational principles of classical rhetoric is that there are three primary means of persuasion in oral or written discourse: logos, pathos, and ethos. Logos refers to persuading through logic and appeals to reason. Pathos refers to persuading through emotional appeals. Ethos refers to the credibility of an advocate and how this credibility affects the advocate's effectiveness. This triad of persuasive processes has attracted much interest from modern legal writing and advocacy scholars. The works on this topic have been sub-divided below based on their specific area of focus.
1. Logos, pathos, and ethos in persuasive legal writing generally
The work listed below offers an introductory explanation of logos, pathos, and ethos and how these concepts differ from and complement one another.
- Michael R. Smith, Logos, Pathos, and Ethos in Television Commercials: Understanding Fundamental Persuasive Processes, in Advanced Legal Writing: Theories and Strategies in Persuasive Writing 81 (Aspen L. & Bus. 2002).
2. Logos (persuasion through logic) in persuasive legal writing
The following works explore in detail the role of logos—persuading through appeals to logic and reason—in contemporary legal wring. In the context of persuasive legal writing, these works discuss topics of formal analysis such as induction, deduction, syllogism, enthymeme, analogical reasoning, and logical fallacies.
- Ruggero J. Aldisert, Logic for Lawyers: A Guide to Clear Legal Thinking (3d ed., Contemp. Med. Educ. 2001).
- Scott Brewer, Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy, 109 Harv. L. Rev. 925 (1996).
- Steven J. Burton, An Introduction to Law and Legal Reasoning (Little, Brown & Co. 1985).
- Julian L. Bush, Argument and Logic, 67 Mo. L. Rev. 463 (2002).
- Michael H. Frost, Greco-Roman Legal Analysis: The Topics of Invention, in Introduction to Classical Legal Rhetoric: A Lost Heritage 23 (Ashgate Publg. Ltd. 2005).
- Michael Frost, Greco-Roman Legal Analysis: The Topics of Invention, 66 St. John's L. Rev. 107 (1992).
- James A. Gardner, Legal Argument: The Structure and Language of Effective Advocacy (Michie 1993).
- Wilson Huhn, The Uses and Limits of Syllogistic Reasoning in Briefing Cases, 42 Santa Clara L. Rev. 813 (2002).
- Dan Hunter, No Wilderness of Single Instances: Inductive Inference in Law, 48 J. Leg. Educ. 365 (1998).
- Steven D. Jamar, Aristotle Teaches Persuasion: The Psychic Connection, 8 Scribes J. Leg. Writing 61 (2002).
- Kristen K. Robbins, Paradigm Lost: Recapturing Classical Rhetoric to Validate Legal Reasoning, 27 Vt. L. Rev. 483 (2003).
- Mary Massaron Ross, A Basis for Legal Reasoning: Logic on Appeal, 46 No. 4 DRI For Def. 46 (2004).
- Anita Schnee, Logical Reasoning "Obviously," 3 Leg. Writing 105 (1997).
3. Pathos (persuasion through emotion) in persuasive legal writing
The works listed below apply the classical rhetoric concept of pathos—persuading through emotion—to contemporary legal advocacy.
- Michael H. Frost, Ethos, Pathos, and Legal Audience, in Introduction to Classical Legal Rhetoric: A Lost Heritage 57 (Ashgate Publg. Ltd. 2005) (cross referenced under Ethos).
- Michael Frost, Ethos, Pathos, and Legal Audience, 99 Dick. L. Rev. 85 (1994) (cross referenced under Ethos).
- John C. Shepherd & Jordan B. Cherrick, Advocacy and Emotion, 138 F.R.D. 619 (1991).
4. Ethos (establishing credibility) in persuasive legal writing
As explained earlier, ethos refers to the means by which an advocate establishes credibility in the eyes of his or her audience. The following works explore in detail the role of ethos in contemporary legal advocacy.
- Michael H. Frost, Ethos, Pathos, and Legal Audience, in Introduction to Classical Legal Rhetoric: A Lost Heritage 57 (Ashgate Publg. Ltd. 2005) (cross referenced under Pathos).
- Michael Frost, Ethos, Pathos, and Legal Audience, 99 Dick. L. Rev. 85 (1994) (cross referenced under Pathos).
- Jerry Frug, Argument as Character, 40 Stan. L. Rev. 869 (1988).
- Michael R. Smith, Ethos in Legal Writing: Character and Good Will, in Advanced Legal Writing: Theories and Strategies in Persuasive Writing 101 (Aspen L. & Bus. 2002).
- Michael R. Smith, Evincing Intelligence in Legal Writing, in Advanced Legal Writing: Theories and Strategies in Persuasive Writing 127 (Aspen L. & Bus. 2002).
- Ronald J. Waicukauski, JoAnne Epps & Paul Mark Sandler, Ethos and the Art of Argument, 26 Litig. 31 (No. 1, 1999).
* © Michael R. Smith 2006. Professor of Law and Director of Legal Writing, The University of Wyoming College of Law.