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Abundance, 148, 155 Aeschines, 33, 35, 36 Aeschylus, 5 Alexander Index abundance, 148, 155 Bank Nationalisation Case, 189 Aeschines, 33, 35, 36 Bannister, Saxe, 184 Aeschylus, 5 Barak, Justice Aharon, 37, 38 Alexander, Larry, 28 barristers, 165–216 alliteration, 259 advocacy skills, 211–14 ambiguity, 128, 130, 139 Australian, 184–93, 197, 204–9 amplification, 102 “barrister class”, 203, 204, 208, analogy, 25–31 209, 215 anaphora, 259 cartels, 192–3 anti-rhetoric, 14, 34 celebrity, 172–84, 189–90, 197, 207 antistrophe, 150 competition, 191–2, 208–9 antithesis, 261 connection between judiciary Antonius, Marcus, 46, 49–56, 59, 61, and, 203 66-73 decline of the bar, 190–3, 197, 203, Apollodorus, 41–2 209, 216 appropriateness, 56, 58, 106 education, 171 Archer-Shee case, 181–2 egalitarianism, 204 Archibald Will case, 189 18th century, 170–2 Aristides, Aelius, 129 English traditions, 198–204 Aristophanes, 119, 121 exercise of rhetoric, 211–14 Aristotle, 17–25, 52, 268 female, first in NSW, 186–7 Art of Rhetoric, 19, 112, 268 future in Australia, 189–216 background, 17 history in Australia, 184–93 force of language, 17–19 history in England, 165–84 Oxford and Cambridge, innovation, 214–15 teaching at, 161 Inns of Court, 165, 166, 167, 168 Plato’s Academy, 17 media coverage, 172–3, 188, 190, 207 Plato compared, 16 new values, 205–6 proof by argument, 79 19th to 20th century, 170–84 Quintilian influenced by, 103, 110 NSW Roll of Barristers, 184 rhetoric, view of, 19–22 Old Bailey practitioners, 170–2 silence as rhetoric, 42 politicians, 169, 186 arrangement, 77–7, 100, 121 Prisoners Counsel Act 1836, 170 artificial speech, 222–3 16th to 19th centuries, 167–70 Ascham, Roger, 161 specialised knowledge, 244 asperity, 146–7 Barrow, Eliza, 176, 178 Asquith, Henry, 272, 274 Barwick, Sir Garfield, 188–9, 197, 199, assimilation, 128, 130, 137, 138, 140 200, 206, 230–1, 241, 242, 279 assonance, 149, 259 beauty, 132, 149–50, 152 attenuation, 102 Beazley, Kim Snr, 279 audience Beecher Stowe, Harriet, 254 character of, 37–9 Beiger, Shirley, 188 winning favour of, 52 Beyer, Associate Justice, 40 Austin, JL, 18 Beyfus, Gilbert QC, 183, 184 Australian barristers, 184–93, 189–216 Birkett, Norman, 183 Australian Constitution, 201, 204, 209, Birney, James, 254 216, 279 Blackett, Wilfred KC, 185, 186 Baccarat trial, 174–5 Blackmun, Associate Justice, 38–9, 40 Bacon, Francis, 161, 216 Brennan, Chief Justice, 212, 240 Baldwin, Stanley, 276 brilliance, 147 Balfour, AJ, 238, 271 Burke, Edmund, 280 288 INDEX Bush, George W, 278 forensic speech, 51, 59–66 Byers, Sir Maurice, QC, 212, 220 ideal orator, 46–50 Byzantine period, 114, 156–60 influence of, 73–86, 112, 114 cadence, 150, 152 lack of legal education, 118 Caesar, 66, 67, 70, 71, 72 modern advocate, relevance to, 73–86 Callicles, 9, 14 Oxford and Cambridge, Calwell, Arthur, 271, 279 teaching at, 161 Campbell, JL, 185 Partitiones Oratoriae, 24 Carman, George, 184 Phillippic, first, 66–8, 74, 78 Carson, Sir Edward, 174, 179–82, 197, Phillippic, second, 68–73, 74 205, 206 Pro Milone, 59–66, 74, 78 case citation, 245–6 proof by argument, 78–80 Casement, Sir Roger, 168, 182–3, 206 Quintilian compared, 88 Cassidy, Sir Jack, QC, 188 Quintilian influenced by, 102, 103, 110 Cato, 103 stasis theory, 122–3 Catullus, 52 style, 56–9 celebrity barristers, 172–84, 189–90, theory of rhetoric, 46–59, 73–86 197, 207 wit in advocacy, 54–5 Chamberlain, Arthur, 178 clarity, 132, 144–5, 219, 229, 249 Chamberlain, Neville, 274 Clarke, Sir Edward, 174–5, 197 character, 23, 32–42 Classical Greece accusations against opponent, court procedures, 5–6, 120 34–7, 69–73 handbooks on oratory, 121, 156 accused, 41–2 law courts as entertainment, 120 advocate, 34–7, 80, 227–8 legal system, 4–6, 45 anti-rhetoric, 14, 34 rhetorical tradition, 3–44, 120–4 audience, 37–9 Clodius, 60–5, 69 Cicero, 53, 80–1 Coleridge, Lord Chief Justice, 174 Hermogenes, 151–3, 155 Communist Party Dissolution Act Case, intra-judicial rhetoric, 39–40 189, 212 judge, 37–9 confirmatio, 69, 116 judicial rhetoric, 39–41, 53 conflict of law, 128, 130, 137, 141–2 jury, 37 conjecture, 127, 128, 130, 134–6 logographic speeches, 32–7 counterplea, 127, 130, 134, 135 non-legal argumentation, 32 demand for evidence, 135 persuasion by, 23 exception, 134–5 “sledging”, 36–7, 68 motive and capacity, 135 witnesses, 80–1 objection, 135 Chifley, Ben, 279 persuasive defence, 136 Christianity and rhetoric, 156, 157, 254 sequence of events, 135–6 chronologies, 239–41 transposition of cause, 135–6 Churchill, Winston, 270–7, 281 counterposition, 127, 130, 137, 138–9 Cicero, 45–86, 88, 114, 121–3, 159 Crassus, 13, 46–9, 56–9, 61, 86 arrangement of address, 77–7 cross-examination, 226, 230, 237 character, use of, 53, 80–1 Cullen, WP, 185 De Inventione, 112, 114, 121–3, 125, Daly, Fred, 279 134, 156 De Oratore, 13, 45, 46–59, 112, 114, 158 De Officiis, 66 death penalty, 207 De Oratore, 13, 45, 46–59, 112, 114, 158 declamatio, 117 death, 73 decorum, 132, 155, 160 deliberative speech, 66–8 definition, 127, 128, 130, 136–8, 140, 145 dilemma, use of, 61 deinotēs, 132, 155, 160 emotion in advocacy, 53–4, 81 deliberative rhetoric, 22, 23, 66–8, 115 epideictic speech, 68–73 Cicero, 66–8 289 REDISCOVERING RHETORIC delivery, 122 Evatt, Herbert Vere, 187, 197 appropriateness, 56, 58, 106 Everett, Edward, 256, 258, 259–62 Aristotle on, 24 evidence and proof Cicero, 58–9 adduction of evidence, 230 Quintilian, 105–7 Aristotle, 79 Demitrius of Phalerum, 45 Cicero, 78–80 Demosthenes, 33–7, 41, 43, 68, 103, 156 proof by argument, 78–80 dialectic, 15, 16, 19 Quintilian, 95–7 Aristotle’s view, 19 written submissions, 231–49 Cicero’s view, 52, 57 ex tempore speaking, 92, 104 pursuit of truth, 9 exception, 134–5 rhetoric and, 15–16, 19 exēgētai, 6 Socrates’ view, 9, 15 exordium (opening), 229 dilemma, 61 Aristotle, 25 Dionysius of Halicarnassus, 159 Cicero, 60, 66, 69, 74–7, 79 distinctiveness, 144–5 Quintilian, 94 Dixon, Chief Justice, 212, 229, 242 federation, 209 Douglass, Frederick, 254 Ferguson, DG, 185 Dovey, WR, QC, 188, 189, 197 Fitzgerald AJA, 76 Duke of Devonshire, 238 florescence, 132, 148 education forensic rhetoric see judicial rhetoric legal see legal education Fraser, Allan, 279 rhetorical see rhetorical education freedom of speech, 18 Einstein, Albert, 30 Gaius, 129 Emerson, Ralph Waldo, 254 Gandhi, Mahatma, 275 emotion in advocacy Garrison, William Lloyd, 254 Cicero, 53–4, 81 Gee, Christopher QC, 59 Quintilian, 98–100 genetic gifts, maximising, 195 England George of Trebizond, 115, 158–60 Australian barristers called to Gettysburg Address, 253, 256–63 Bar in, 184, 185 Gibbs, Sir Harry, 199, 232 barristers, history of, 165–84 Ginsburg, Associate Justice, 39 common lawyers, 168 Glass, Harold, QC, 206, 214 democracy of legal system, 202 Golden Age of Oratory in America, Inns of Court, 165, 166, 167, 168 254–63 legal doctrine, 201 Gordon-Cumming, Sir William, 174, legal traditions, 198–204 175 social conventions, 214 Gore, Al, 281 source of judges, 201 Gorgias, 8–11, 13, 14, 15, 24 transparency of legal system, 202–3 Gorgias and the sophists, 8–11, 26 ennoia, 143 Gower’s Plain Words movement, 101 epanastrophe, 149 grandeur, 132, 145–8 epideictic rhetoric, 22, 68–73, 116 gravity, 132, 155 Cicero, 68–73 Griffith, Sir Samuel, 186, 242 panegyric, 45 Gzell QC, 76–7 Erskine, Thomas, 173, 179, 197 Hart and Sacks, 29 ethos (ethics), 4, 82–4 Harvey, JM, 185 Cicero, 57, 82–4 Hastings, Sir Patrick, 183 ethical appeal of advocate, 227–8 Hely, Peter QC, 59 Hermogenes, 132, 151–3 Hermagoras of Temnos, 121, 127 Quintilian, 98–100 Hermann, Marie, 175, 176 Euripedes, 3 Hermogenes, 114–15, 121–62 Evans, Ada, 186–7, 205 George influenced by, 115, 159 Evatt, Clive, QC, 188, 189, 279 issues, 125–9, 134–43 290 INDEX Milton’s opinion of, 161 mitigation, 128, 130 On Invention, 124 objection, 127, 128, 130, 134, 137, On Issues, 124, 125–9, 134–43, 158, 161 142–3 On the Method of Forcefulness, 124 practical, 127, 130, 137 On Types of Style, 124, 125, 129, 132–4, quality, 127, 128, 130, 137–42 143–55, 158, 160–1 transference, 128, 130 Oxford and Cambridge, Jerome, 90, 114 teaching at, 161 judge Progymnasmata, 124 character of, 37–9 Renaissance, influence on, 156–61 intra-judicial rhetoric, 39–40 stasis theory, 122–4, 125, 158, 162 winning goodwill of, 50 Sturm preaching value of, 160, 161 judicial rhetoric, 22, 23, 39, 115–16, style, 129, 132–4, 143–55, 162 217–49 translations of works, 159–61 adduction of evidence, 230 Herodotus, 103 analogy, 25–31 Hesiod, 5 arrangement, 77–7, 100 High Court of Australia, 211–13, 232 artificial or ostentatious speech, 222–3 Hitler, Adolf, 275 barristers, 211–14 see also barristers Holman, WA, 186 case citation, 245–6 Holmes, Olive Wendell Jnr, 196 centrality, 246–7 Holt, Harold, 279 character, 39–41, 53, 80–1, 227–8 Homer, 3, 5, 26, 103 Cicero, 51, 59–66 Horace, 103 classical Greek courts, 4–6, 45 Hortensius, Quintus, 109 confirmatio, 69 Hughes, Tom, QC, 75–6, 184, 186, 241 cross-examination, 226, 230, 237 humour, 54–5, 228 customary norms, 225 Humphreys, Justice, 179 declamatio, 117 indignation, 132, 154 delivery see delivery innovation, 214–15 eloquent persuasion, 194–7 internal vs external proofs, 79 emotion, 53–4, 81, 98–100 interruption, 230–1, 241–3 ethics, 82–4, 98–100, 227–8 intra-judicial rhetoric, 39–40 evidence and proofs, 95–7, 230 invective, 223–4 exordium, 25, 60, 66, 69, 74–7, 79, inventio (invention), 121, 123–4, 125 94, 229 Cicero, 121, 122, 123, 125 force of language, 18, 98 Hermogenes, 125–9 forensic advocacy, 59–66, 217–49 Issacs, Rufus (Lord Reading), 174, humour, 54–5, 228 176–9, 197, 206 interruption, 230–1, 241–3 issues,
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