AGGRESSIVENESS IN CASE PRESENTATION: BEST RHETORIC? BEST ORATORY?

Michael Sean Quinn*

A great many trial lawyers believe in being aggressive. That term can apply to the presentation of cases in various ways. 

First, it may apply to many different contexts: motions, trials appeals. It may even apply to depositions in various ways.  

Second, so far as actual trials are concerned, and these are now a rarity, it may apply to asking questions of witnesses, to arguing and responding to motions, to giving opening arguments, and/or to giving closing arguments.  

Third, there are a variety of ways to be aggressive; a great many lawyers believe that it requires recognizable pushiness in tone of voice, the words used, and the positioning of the body.  

Fourth, what is being said here may apply to taking depositions. See my “Depositions and Leading Questions,” August 8, 2012. 

Many lawyers think that this approach expresses strength and that a different approach expresses weakness, that an aggressive looking approach is required to generate interest and avoid being boring. 

For the rhetorician, being boring is a form in ineffectiveness because if one is boring, the audience will go to sleep, doze (more likely, drift off,  or somehow otherwise not pay attention. Effective courtroom oration, so the idea goes, requires dynamism; dynamism requires energy; and if one appears to have low energy, as Mr. Trump has suggested, an  audience is less likely to be persuaded.  No doubt this proposition is sometimes true. 

I have seen it myself when some preachers preach. This works particularly well for what are not called “Evangelicals.” The reason it works effectively there, sometimes, is that the preacher is trying to inspire. Often well educated people rebel in their minds (and even hearts) against this form of discourse, but that it hard to verify, and many people certainly find it attractive, in sermons. 

I have never actually seen intense preaching work in the courtroom. I am not sure why so many prosecutors have faith in the idea. Very significantly, one can be persuasive (and therefor not boring) without being noticeably aggressive, e.g., in tone, volume, movement, or physical expression.  In fact, sometimes quite the opposite is true. 

Calmness, confidence, a certain degree of polish, and preparedness. Aggressive speakers delivering arguments often do not look confident. They look like they are satisfying some internal need to at least appear to be ready.  Aggressively spoken (and otherwise expressed) argument does not have the characteristics of a relaxed speaker. 

Stridency does always express only indignation and a devotion to justice. Indeed, it may not express either of these. It may just express bullshit, deception, theater, or lying. Sometimes it expresses internal and irrelevant rage and hostility, sometimes it expresses a kind of weakness; and sometimes it expresses a lack of confidence in one’s cause.  Relaxation (relaxedness in presentation) can generate confidence in the advocate in the hearer. Perhaps we should all learn the idea of “confidently relaxed” or “relaxedness exhibiting calm assuredness.”

It may even tell the jury that you don’t have confidence in their ability to grasp and consider a case.  Perhaps this is one of the reasons one sees so little of this style of oration in courts of appeals. There lawyers know that it makes no sense to try and wind up the hears of the arguments. They are there for the reasoning process, and they know it.  

One can sometimes learn valuable ideas from seemingly irrelevant sources. Here’s something I read in the Wall Street Journal just the other day. It’s a book review by Shlomo Angel of Joel Kotkin’s Human City (Agate Publishing 2016). Here’s what he said: Kotkin “does not pretend to present himself as an even-handed expert; he presents his arguments and leaves the opposition to argue its own case. All the same and much to my delight, the book does not read as a diatribe or an anti-urban manifesto. Mr. Kotkin comes across as a relaxed confident and experienced litigator standing in front of a jury of readers making his case.”  C5 WSJ (5/21-22/16. My emphasis.) 

I might dissent on one point. I think its valuable to respond to the arguments of others. Sometimes this should be restricted to the response or reply section of an argument. In most courts, for example, an argument can be split in two–the positive presentation and the rebuttal. Nevertheless, I am inclined to believe that the same rhetorical ideas should apply to the refutation of or the responding to the arguments of the other side as apply to the rest of the presentation.  One thing for sure, anger, sneering,* contempt and rage are most often not effective.  The do not present confidence. They express the opposite, as it often true of verbal hostility.  

(*Here is something I’m not sure of. There is a difference between sneer and scorn. Sneering is always a bad idea; scorning is usually as well, but not always. Some advocates should never try it. As applies to most principles of oral rhetoric: some can do it some cannot. In my mind, manifestations of contempt come out closer to the sneer that it does to scorn.  As with almost everything, there are very narrow exceptions. Consider the lawyer from a law firm that engages in lawsuits regarding intellectual property rights that are a method of extorting money from cyber indiscreet. There is another distinction which is worth thinking about:sneering versus taunting. On very rare occasions taunting can work. The best one is where opposing counsel is an an obviously arrogant, over-strident and repulsive asshole whose properties are obvious to jurors and/or even the judge and who want to see this fellow get a comeuppance. Since women are rarely characterized as assholes, a “she” would still have to have an analogous characteristic.)

I’m not sure how often, how, or when the following can be effectively used: wit, comedy, tonal irony, analogy to fable, and the ostentatiously clever. (Hence, ponder what I say and think through for yourself. It may involve complexity and subtlety For example, what is comical taunting; when and how can it be successfully used, and so on.)  I am inclined to say wit works sometimes, ridicule hardly ever does,  except for the entire implausible, simple-minded, and plainly lying witness) and comedy will work only very seldom. 

Amusing, striking, and/or  memorable cleverness is impressive and sometimes may help an argument, but the advocate must be careful. The ostentatiously clever presentation does not impress. It looks like showing off.) I’m not sure about any of this, however. Probably most litigators are inclined against its use; it doesn’t look serious enough. After all, they say, the other side might point out that the search for justice is not a joke. 

Sometimes gently characterizing opposing counsel’s arguments ironically–even comically–might be a good idea.  For example, suppose one were arguing a zoning or similar type case where your wants to be able to build several tall buildings in the central city and you are being opposed. You might consider characterizing the argument of opposing counsel as being and address in praise of urban sprawl. 

Maybe that would help; maybe not. It takes rhetorical intuition and judgment to even semi-know.  Still, in matters this subtle, you will never have fully justified true belief. There is risk in adventuresome argumentations. 

The use of aphorisms, analogies, stories and fables are also important. Then again, all essays have to come to an end at some point, and this one is it, for now.  

*Michael Sean Quinn,

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Originally posted on 05/28/2016 @ 7:56 pm

Michael Sean Quinn, PhD, JD, CPCU, Etc

Michael Sean Quinn, PhD, JD, CPCU, Etc. (530)

One of Texas's leading insurance scholars, Michael Sean Quinn is a past chair of the Insurance Section of the State Bar of Texas and has a broad legal practice.

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