The New Yorker recently reviewed Jay-Z’s book explaining his discography (“Decoded”) alongside “The Anthology of Rap,” a nine-hundred-page compendium published by two English professors who argue that rap should be considered a form of modern poetry.
I won’t touch that argument; poets and English professors are notoriously violent.
But one part of the article bears particular relevance to advocates:
Too often, hip-hop’s embrace of crime narratives has been portrayed as a flaw or a mistake, a regrettable detour from the overtly ideological rhymes of groups like Public Enemy. But in Jay-Z’s view Public Enemy is an anomaly. “You rarely become Chuck D when you’re listening to Public Enemy,” he writes. “It’s more like watching a really, really lively speech.” By contrast, his tales of hustling were generous, because they made it easy for fans to imagine that they were part of the action. “I don’t think any listeners think I’m threatening them,” he writes. “I think they’re singing along with me, threatening someone else. They’re thinking, Yeah, I’m coming for you. And they might apply it to anything, to taking their next math test or straightening out that chick talking outta pocket in the next cubicle.
There’s a crucial distinction between making a compelling argument and truly conveying to a listener the emotions you feel. Legal advocacy is nominally only about the former; there’s no shortage of cases and commentators complaining about “inflaming the jury’s passions” or the like. (Don’t believe everything you read — defense lawyers try to “inflame the jury’s passions” just as often as plaintiff’s lawyers.)
But in practice legal advocacy is about both. A “really lively speech” isn’t as persuasive as a “really lively speech” that also helps listeners “imagine that they were part of action” — and thus helps listeners feel, and not just think, the same unwavering conviction and rightness that the lawyer feels about their client’s cause.
As much as we would all like to draft every brief, and prepare every argument, with the head and the heart, with overwhelming reason and passion, most lawyers default to either the reasoned or the emotive perspective in their drafting and preparation. (In my humble opinion, the more complicated the law in the case is, the more likely it is that lawyers will focus primarily on their reasoning.) Then, to the extent possible, and largely as an afterthought, the lawyer will either nudge an emotive argument to fit with the reasoning or sprinkle the reasoning with emotion.
Yet, as I described in my part of The Jury Expert’s article on Don Keenan & David Ball’s “Reptile” book:
In the field of advocacy, little has changed since the publication of Aristotle’s Rhetoric two and a half millenia ago. “There are, then, these three means of effecting persuasion. The man who is to be in command of them must, it is clear, be able (1) to reason logically, (2) to understand human character and goodness in their various forms, and (3) to understand the emotions-that is, to name them and describe them, to know their causes and the way in which they are excited.” Whatever label we give our particular means of exciting the emotions — such as Ball and Keenan’s “reptile” or Allen, Schwartz and Wyzga’s “moral sense” — we must be careful not to miss the forest for the trees.
Advocacy is an art driven by language and emotion, not a science driven by data and testable hypotheses. Although it is always folly to attempt to manipulate a jury, advocates must remain open to all of the rhetorical tools available to them, and must adapt to the case at hand, sometimes by focusing on “the immediate danger of the kind of thing the defendant did,” sometimes by crafting a “persuasive narrative” through “attention choreography,” and sometimes by mixing those approaches.
As Aristotle described in the Poetics:
Poetry in general seems to have sprung from two causes, each of them lying deep in our nature. First, the instinct of imitation is implanted in man from childhood, one difference between him and other animals being that he is the most imitative of living creatures, and through imitation learns his earliest lessons; and no less universal is the pleasure felt in things imitated. We have evidence of this in the facts of experience. Objects which in themselves we view with pain, we delight to contemplate when reproduced with minute fidelity: such as the forms of the most ignoble animals and of dead bodies. The cause of this again is, that to learn gives the liveliest pleasure, not only to philosophers but to men in general; whose capacity, however, of learning is more limited. Thus the reason why men enjoy seeing a likeness is, that in contemplating it they find themselves learning or inferring, and saying perhaps, ‘Ah, that is he.’ For if you happen not to have seen the original, the pleasure will be due not to the imitation as such, but to the execution, the coloring, or some such other cause.
Imitation, then, is one instinct of our nature. Next, there is the instinct for ‘harmony’ and rhythm, meters being manifestly sections of rhythm. Persons, therefore, starting with this natural gift developed by degrees their special aptitudes, till their rude improvisations gave birth to Poetry.
Per Aristotle, advocates need first and foremost to “reason logically,” but should also “excite the emotions,” including by enabling “the instinct of imitation.”
Part Chuck D, part Jay-Z.
(But leave the “harmony and rhythm” to the poets and the rappers.)