LawProse Lesson #249: The advocate’s mindset toward the judge: respectful intellectual equality.

LawProse Lesson #249: The advocate’s mindset toward the judge: respectful intellectual equality.

One thing that persuasive advocates do is to pitch their tone at the right level: their degree of confidence, their firmness of position, and their analytical keenness. They know when and how to concede points, and when and how to assail their opponent’s points. With the judicial audience, they’re neither condescending nor kowtowing: they approach the judge as an intellectual equal, and always with respect. Ancient rhetoricians knew all about tactics of persuasion, and we moderns have much to learn from them. The ancients thoroughly classified and named these tactics. Today we’ll look at four classical argumentative ploys that remain eminently useful to modern advocates.
  1. Paromology /pa-ruh-mol-uh-jee/: the concession of minor points in a debate as a way of enhancing your credibility and strengthening your position. “It is true, your honor, that the statute doesn’t specifically mention children. But it doesn’t need to: it says ‘persons.'” Nothing is really conceded, but the first sentence acknowledges that you’ve heard what concerns the judge. That’s a credibility enhancer.
  1. Apophasis /uh-pof-uh-suhs/: the denial of an intention to mention something even while mentioning it. In a one-day civil bench trial in which your client is suing Bartleby: “Your Honor, we need not introduce evidence of Bartleby’s three drug convictions. In fact, we think those drug convictions have little bearing on this case. The less said about them and about Bartleby’s extensive drug rehab, the better. I’m sure my friend [opposing counsel] would agree.”
  1. Epitrope /i-pit-ruh-pee/: the act of conceding the force of an opponent’s claim in an attempt to gain an advantage, usually by suggesting that the claim, though sound, is irrelevant to the debate at hand. “It is true, Your Honor, that the papers were in proper form and were mailed to the correct address. Every jot and tittle was correct. But the statute requires personal service, not service by mail, and my client was in Europe during the two relevant months. He was never personally served.”
  1. Prolepsis /proh-lep-sis/: the answering of an opponent’s potential objection before it has been raised—that is, the anticipation and gutting of a counterargument before it is made. “My friend Ms. Wilson [opposing counsel] may well say to this Court that damages are awarded for personal injuries all the time. She argued that extensively below. But the statute doesn’t use the word damages, which denotes a monetary award. Instead, it uses damage, without the final s. Any argument Ms. Wilson makes about damages is quite off point and misquotes the statute.”
Some readers will find the classical names a turn-off; others will find them immediately appealing. I can’t help which reaction you have. But these are the only accepted terms for these strategies. If you like this lesson, with its types of argumentative ploys, let me know. We can investigate others in coming lessons—not to mention (apophasis) other rhetorical figures of speech. For a full listing, see the newly released 1,100-page Garner’s Modern English Usage 985–1036 (4th ed. 2016). Further reading: Antonin Scalia & Bryan A. Garner Making Your Case: The Art of Persuading Judges 9–10, 15–16, 33–34 (2008). Garner’s Modern English Usage 985–1036 (4th ed. 2016).

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