Posted on
December 12, 2017 in
Criminal trial lawyering is a subcategory of trial lawyering, which is a subcategory of persuasion, whihc is a subcategory of communication.
So the criminal trial lawyer, to be better at her craft, could study the lessons of other trial lawyers (personal-injury lawyers, for example). That’s obvious. The good thing about personal-injury lawyers is that they are fighting over money. ((It’s also the bad thing about them.)) Because they are fighting over money they have money to spend on investigations into being better trial lawyers. Few are motivated to do so, but those that are, are also financially able.
Less obviously, the criminal trial lawyer, to be better at her craft, could study other persuaders, such as salesmen, and preachers, and politicians and other conmen. Salesmen write ad nauseum about how to be better salesman—How to Win Friends and Influence People is a classic manual of persuasion. I don’t know that preachers write about their craft, but they can be watched in action. The art of the con is more opaque, but no less worthy of study.
Still less obviously, the criminal trial lawyer who wanted to improve could study the crafts of other communicators , such as teachers, and actors, and writers, and probably musicians and dancers. Anyone who has given serious thought to how to make people feel or understand things will have a lesson for the criminal trial lawyer, if the lawyer is willing to listen.
Essentially what Mr. Bennett is espousing is rhetoric, or the art of persuasion. The single most important work on rhetoric is traced to Aristotle, his treatise entitled Rhetoric, or The Art of Rhetoric, is recommended reading. Cicero in ancient Rome was considered a sublime orator and lawyer, and practiced sophistry, using rhetoric. Rhetoric, by definition, is antithetical to parrhessia–the seeking of truth in argument formation and judging claims.
In my limited experience with the criminal justice system, Mark, along with Alan Dershowitz, are correct in noting that criminal cases are adjudicated based on an adversarial system, using rhetoric. Instead of seeking the truth, the lawyer who does the best job of rhetoric for their client–wins! Dershowitz in the literature points out that trial of the century, the O.J. Simpson case, was based on rhetoric and lies on all parties.
It is a sad state of affairs that our criminal justice system is based on mendacity and an adversarial system of adjudication, rather than seeking the truth. To conclude, when in Rome, do as the Romans do is the trope maxim. Hence, an articulate lawyer well-versed in rhetoric is sine qua non to the defense of a criminal charge.
“It is a sad state of affairs that our criminal justice system is based on mendacity and an adversarial system of adjudication, rather than seeking the truth.”
Truth as decided by whom? In a society where the people have ceded the monopoly on violence to the state, I would argue that an adversarial system of adjudication is not only necessary but the polar opposite of a sad state of affairs.
Not only do preachers write about preaching, they study it academically. The discipline is known as “homiletics”.
That’s a whole new rabbithole for me. Thank you!