Justice Virginia Bell on rhetorical devices and barristering ... It seems to be a male thing ... Distractions from the truth ... Tulkinghorn asks, where would the bar be without bad rhetoric?
Homer Simpson: "Do I know what rhetorical means?"
IN an episode of The Simpsons this exchange occurs:
Mother Simpson: [singing] How many roads must a man walk down before you can call him a man?
Homer: Seven.
Lisa: No, dad, it's a rhetorical question.
Homer: Rhetorical ... ehhhhh ... ????? ... Eight!
Lisa: Dad, do you even know what 'rhetorical' means?
Homer: Do I know what 'rhetorical' means?
The Oxford Reference Dictionary says that rhetoric is: the art of effective or persuasive speaking or writing; and secondly language designed to persuade or impress (often with an implication of insincerity or exaggeration etc.) Those definitions and others can be found here.
In an article in 1996 US law professor Jack Balkin focused on the second ORD definition and said:
"A familiar view of rhetoric holds that it is concerned primarily with style rather than substance, with persuasion rather than discovery of the better argument, with emotion rather than reason, with dazzling effect rather than rigorous analysis. Hence the dangers of rhetoric are the dangers of misplaced sentiment, fuzzy headed thinking, overbearing of reason by passion, and susceptibility to deceit and chicanery."
Canadian academic Dr Tania S. Smith specialises in the study of rhetoric.
She acknowledges here that there is good and bad rhetoric. She says that ...
" 'bad rhetoric' sounds like something you'd say to a dog named Rhetoric if he soils on your carpet [and] ... when I say 'I study and teach rhetoric' it starts to sound like I just said 'I study and teach verbal poop'."
In 2011 American writer and graphic designer Nancy Duarte examined pronouncements of the late Steve Jobs and found 16 rhetorical devices that he regularly used in a fairly good way.
Last month High Court Justice Virginia Bell gave a keynote address to Australian Women Lawyers. Justice Bell does not appear to have yet authorised an official transcript of the address.
The principal media headline was, "Judge says Bar is no place for rhetoric".
Julie McCrossin with Virginia Bell: the way things ought to be
The headline neatly solved a big problem. It seems clear that Justice Bell was not describing things as they are, but as they ought to be.
The headline, however, can apply to either situation, and the address did discuss both propositions.
On the one hand our courts should not be full of barristers indulging in, and being paid for, the behaviours Jack Balkin was referring to.
Yet it is equally obvious that juries in criminal cases in particular are being subjected to barristerial rhetoric by the truckload, every day, in our courts, with the results Balkin described.
So how is this conflict to be fixed?
It seems that the problem is that there are too many male barristers, who, being male, indulge in far too much "bad" rhetoric.
There is an implication that the senior bar allows a situation where bad rhetoric works, and thinks that barristerial merit is enhanced by a proclivity to indulge in it.
The article has Justice Bell saying:
"The view that rhetoric is the mark of an effective barrister is outdated and unfairly favours men".
As I understand her, bad rhetoric is why ...
"There exists an impression that men are superior to women in the ability to present a case in court."
It seems that bad rhetoric cops the blame for the abysmal statistics on the numbers of women at the senior bar.
Less than eight percent of senior counsel are women.
The central danger of rhetoric is that it distracts from the search for truth. Perhaps that's why men like it.
After all, men created the "non-truth seeking" adversarial system.
Perhaps men don't care as much for truth as women. Miranda Devine once wrote:
"What is it about women that makes them such prodigious whistleblowers? ... It can't be that women are more ethical than men."
She then sets out why they are (some sort of rhetorical device at play there?) concluding:
"Whatever the reason, the crucial role of whistleblower seems to be a burden women have long shouldered."
Where would the bar be without bad rhetoric?
Along with advice, that is one of the main things that barristers sell. That is what clients buy.
If insincerity and exaggeration will persuade or impress the judge in the client's favour, then that is what the client wants.
Justice Bell suggests clients need to be re-educated about barristering. She "urged delegates in senior roles in private practice to redress this misconception [the impression that men are superior to women in the ability to present a case in court] in their discussions with clients."
What is the lawyer to say? We're not going to trick the court into deciding in your favour?
Got to go now. There are piggies flying around the room. Being chased by a dog called Rhetoric.