Rhetoric Shmetoric?

In This Issue

The Roberts Court did no favors for plaintiffs this Term.

Supreme Court Roundup 

The U.S. Supreme Court finished its 2006 Term on June 28, 2007.  For business trial lawyers and their clients, the key decisions included these-- all of which plaintiffs lost:

• Bell Atlantic Corp. v. Twombly -- pleading antitrust conspiracy
  
• Philip Morris USA v. Williams Estate -- punitive damages for harm to third parties
  
• KSR Int'l Co. v. Teleflex, Inc. -- patent law's obviousness doctrine
  
• Weyerhauser Co. v. Ross-Simmons Hardwood Lumber Co. -- antitrust liability for predatory buying
  
• MedImmune, Inc. v. Genentech, Inc. -- standing to sue for patent declaratory judgment
  
• Microsoft Corp. v. AT&T Corp. -- application of patent law to imports of Windows
  
• Credit Suisse Securities (USA) LLC v. Billing -- securities regulation as exempting IPO clubs from antitrust law
  
• Leegin Creative Leather Products v. PSKS, Inc. -- rule of reason treatment of minimum resale price maintenance under antitrust law
  
• Tellabs, Inc. v. Makor Issues & Rights, Ltd. -- pleading "strong inference" of scienter in securities cases

Better luck next Term? 

Thank you for arguing, indeed.

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Master of persuasion.

Lee Godfrey Makes Us Proud

Lee Godfrey grew up in Palestine, Texas.  And despite -- or because of -- his humble beginnings he developed into one of the finest trial lawyers in these United States.

What distinguishes Mr. Godfrey from the run-of-the-mill trial lawyer?  That he belongs to the American Law Institute, the American College of Trial Lawyers, and the International Academy of Trial Lawyers, among many other honors? 

No.  I think it boils down to three things:

First, before a jury panel or judge, Lee shows his personal character.  As husband, father, grandfather, regular guy, smart guy.  His trustworthiness comes through.

Second, he creates an emotional bond between himself and his client and jurors.  I attribute that in part to his dazzling story-telling.  And who wouldn't like Lee?  Even his opponents do.

Finally, Lee puts on evidence that proves his client's case.

Lee deploys, instinctively I think, the rhetorical tools of the ancients (see Thank You for Arguing at right).

Plus Lee earned the 2007 Karen H. Susman Jurisprudence Award.

Congratulations, Lee.

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Hot Lunch

Jay Heinrichs, author of Thank You for Arguing (above right) counts Artistotle and Cicero as the two greatest rhetoricians of all time. 

What did this famous Greek and Roman think about the potential for manipulation inherent in the rhetorical techniques that they taught, practiced, and advocated?

Aristotle (384-22 B.C.)

Cicero (106-43 B.C.)

Both men did acknowledge the problem.  Cicero, for example, said that "nothing is so difficult to believe that oratory cannot make it acceptable".  And Aristotle devised logical tricks and proposed simulating character and appealing to prejudices. 

Aristotle justified the risk of abuse by arguing that people gravitate toward the good and just and that therefore rhetoric will more likely convince them of the truth than lead them astray.  He and Cicero also observed that bad people can manipulate any good thing.  And both believed that the personal virtue of the speaker provided the best assurance against misuse.

The same tension exists today -- and I think that it probably explains some of the uneasiness that non-lawyers feel about lawyers, especially trial lawyers.  Even if we lack formal training in rhetorical techniques, we use them every day to convince (for instance) our partners, the Supreme Court, or book readers.  Our persuasive impulse and skill make us different. 

In the hands of a superbly ethical lawyer like Lee Godfrey, the lessons of Aristotle and Cicero become a powerful force for achieving justice.    

What the hey -- Blawgletter

What Makes a Good Law Partner?

William H. Herndon (1818-91).  Law partner to Abraham Lincoln -- and later his harshest critic.

Congratulations.  You made partner.  Hooray.  Woo-hoo.

But consider:  does becoming partner really improve your looks?  Does it make you smarter?  Turn you wiser?

Er.  Not really.  Not at all, really.

The big change is a new, kinda sorta mystical, bond between you and your partners. 

Guess what? That connection makes you more attractive, brighter, and sager.  Because now you can call on the strengths of the whole partnership and every one of the partners in it.

Got that?  Your strength equals your partners'.

Which realization ought to lead a newbie partner to continue -- redouble -- cultivating the high opinion of her new sisters and brothers.  The newbie indeed needs more than anything to become a good partner-sibling.

Note the good.  Not great.   Why?  Because greatness sets the bar too high.  A great law partner knows you and loves you as your mother does.  A great law partner wants only the best for you and will sacrifice his own interest to benefit you.  A great law partner will let you keep all the money.  A great law partner, in short, either doesn't exist or carries the honest title of associate.

So what makes a good law partner?

Do the job.   Doing the job may seem obvious, but plenty of partnerships fall apart because of partners who don't do their part.  In trial work, that means persuading clients and opponents, judges and juries, and your partners (see Thank You for Arguing:  Relevance of Rhetoric below).  But doing the job only incidentally touches on running the firm.  Let the managers, especially the professional ones, handle that. 

Look out for each other.  In About a Boy (2002), the title character realizes that a family needs at least one "backup" in case "someone drops off the edge".  Now, some will say that law partners -- unlike fictional movie children -- don't need law firm mommies and daddies.  Fair enough.  But think of your partners as  brothers and sisters, older and bigger ones who'll watch your back but will also keep you in line.

Accept differences.  The law partnership between Abraham Lincoln and William Herndon endured more than two decades -- and yet these two men differed enormously.  As the author of Lincoln and Herndon (1910) wrote:  "No two men were ever more unlike in temper of mind and habits of thought -- which was, no doubt, a secret of their long friendship.  Lincoln was a conservative, Herndon a radical . . . ."  Plus Herndon waited until Lincoln died to question his legitimacy and brand him an atheist.

Share.   Lincoln made Herndon a 50-50 partner.  As Herndon later related:  "I was young in the practice and was painfully aware of my want of ability and experience; but when he remarked in his earnest, honest way, 'Billy, I can trust you, if you can trust me,' I felt relieved and accepted his generous proposal."  And of course the paternity and atheism stuff came much later.  

"Partner" comes from Middle English parcener -- a word signifying "joint heir".  The idea of kinship and common heritage survives.  New partners, more than any other, ought to embrace the meaning.

Barry Barnett, Editor

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Thank You for Arguing:   Relevance of Rhetoric

Do NOT read this book.

Speaking of Honest Abe, Lincoln aficianado Jay Heinrichs just published a book about rhetoric -- Thank You for Arguing (2007).  Warning:  Do not, under any circumstances, waste your time reading Thank You for Arguing.  Especially if you have a case against me or one of my clients.

Mr. Heinrich drags us back to the origins of rhetoric, telling us that the ancients considered it "the essential skill of leadership -- knowledge so important that they placed it at the center of higher education."  Ugh!

Let me illustrate the tedium of Thank You with a story.  A week or so ago, my son and I sit down to dinner in a new restaurant.  I explain to him that, rhetorically, denying a fact works less well than redefining the question.  Take the example of an opponent calling your client a liar.  You could respond by saying "my client does not lie".  But you could also say:

If by "liar" you mean an American who lost an arm fighting for his country at Iwo Jima, who believes in God and His divine purpose for us, and who always speaks his mind, then I guess you can call him a liar.

To his credit, Mr. Heinrichs points out that having a non-liar client works even better than redefinition.

Other things that you shouldn't read about:

• The difference between winning a fight and winning an argument.  "You fight to win; you argue to achieve agreement."
• The importance of tense.  Past means blame, present equals values, and future signifies choice.
• The roles of logic, emotion, and character in persuasion.  Character counts the most!
• Why rhetorical logic thumbs its nose at its goody two-shoes sibling, formal logic.  Remember the syllogism?
• The five parts of a classical persuasive speech -- introduction, narration, division, proof, refutation, and conclusion.

The title of the book recalls Thank You for Smoking (2006) (trailer here), a movie about a lobbyist for the Academy of Tobacco Studies, which can't find a link between smoking and cancer.  The lobbyist, Nick Naylor, exuberantly (and persuasively!) defends Big Tobacco.  And he says:  "That's the beauty of argument.  If you argue correctly, you're never wrong."

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BlawgletterRoundup

A scintillating, clickable selection from the pages of Blawgletter.

• Why We Err

• What Does Tellabs Tell us?

• What Do You Mean Funny? Funny How?

• Review Review: Orlando Patterson on Clarence Thomas

• Juries and Rhetoric

• Twombly Makes Blawgletter's Head Hurt

• The FCC Would Find This Post Indecent

• Rule 23(f) and "Hydraulic" Pressure to Settle

• So Long, Farewell, Auf Wiedersehen, Goodbye to Conley v. Gibson Pleading Standard (Update)

• Dumb Lawyers, Smart Lawyers, and Wealth
   

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