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With Amici Like These: Cicero, Quintilian and the Importance of Stylistic Demeanor

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With Amici Like These: Cicero, Quintilian and the Importance of Stylistic Demeanor With Amici Like These: Cicero, Quintilian and the Importance of Stylistic Demeanor Michael H. Frost* There is a grave sickness in this nation, the schism of society has begun, and there is severe social tension. The right to display the Ten Commandments is rooted in our Declaration of Independence, and is urgently needed as representing this nation's Faith in God and His moral law . History discloses that the incurable sickness of the world is due . to the total corporate failure of man in the realm of righteousness.1 No gods, spirits, fairies, or other imagined entities pull at the strings of humanity . Materialism compels faith in the human intellect, in the power of knowledge in man's ability to fathom all the secrets of nature and to create a social system based upon reason and justice.2 The foregoing passages appear in the opening pages of competing amicus briefs submitted in the recently decided First Amendment case of McCreary County v. ACLU.3 The case concerned the constitutionality of Ten Commandments displays in two Kentucky courthouses. Depending on a reader's taste in rhetoric, they reflect either the advocates' passionate conviction in a just cause or inflammatory hyperbole. What they do not reflect is a clear sense of judicial audience, which is especially odd in a case that centers on a different kind of audience: the "reasonable observer."4 More remarkable still, these passages do not appear in the Argument section of the briefs. The first passage appears in the Faith and Action organization's "Introduction"; the second in the American Atheists organization's "Statement of Interests of Amicus Curiae." * © Michael H. Frost 2006. Professor of Legal Writing and Irwin R. Buchalter Professor of Law, Southwestern Law School. With many thanks to my Southwestern colleagues, Michael Epstein, Jonathan Miller and Dennis Yokoyama, for their helpful suggestions on early drafts of this piece. I am also grateful to Professor Linda Berger and the J. ALWD staff and reviewers for their insights and patience. 1 Amicus Br. of the Faith and Action et al. at 2, McCreary County v. ACLU, 125 S. Ct. 2722 (2005) (available at 2004 WL 2851007) [hereinafter Faith and Action's Brief]. 2 Amicus Br. of the American Atheists at 2, McCreary County v. ACLU, 125 S. Ct. 2722 (2005) (available at 2005 WL 45049) [hereinafter American Atheists' Brief]. 3 125 S. Ct. 2722 (2005). 4 County of Allegheny v. ACLU, 492 U.S. 573, 635 (Justice O'Connor concurring). 6 Journal of the Association of Legal Writing Directors Vol. 3 Whatever sentiments lie behind these passages, their emotional effects on the intended audience — Supreme Court justices and their clerks — are important, but unpredictable. What their authors must have forgotten or ignored is that an ill-considered opening phrase can damage an advocate's credibility with the Court. The opening pages set the intellectual tone for the entire brief. They can also provoke an emotional response that is difficult, if not impossible, to control. And, finally, they can reveal more than the speakers intended, about themselves and their arguments. In effect, the opening pages create a kind of stylistic demeanor for the entire brief. The authors of these passages would have benefited greatly from the advice of experienced rhetoricians like Cicero, who knew the value of strong opening arguments and wrote copiously on the subject.5 He would remind them of the limits of affective, non-rational appeals to emotion. Out of concern for their credibility, he would urge them to scale it back. He would recommend a subtler, more focused approach, one that concisely prepares the judge for the arguments that follow. And, finally, he would observe that style reflects character and that judges are more favorably disposed in the presence of a "good man speaking" well.6 Unfortunately, even experienced brief writers frequently, and inexplicably, fail to recognize or exploit the most rhetorically powerful location in the brief: its opening pages. This failure is especially unfortunate since judges (or their clerks) rely on these pages to start assessing a brief's merits and its author's credibility. In a case like McCreary, which involved a volatile mix of religion, history and politics, rhetorical style is especially important because the Court already knows what kind of arguments the parties will make. Given the subject matter of the case, the Court knew there would be separation of church and state arguments.7 Based on the Kentucky counties' petition for certiorari, the Court also knew that briefs would include fact- and context-based arguments; arguments about which "test" to apply; and arguments about how "foundational" the Commandments were in the creation and development of American law.8 And, if that is not enough, the Court's opinion in another Ten Commandments case, the 1980 case of Stone v. Graham, 9 provided some clues about which arguments would be made in McCreary. Given the predictability of the types of argument, the manner of argument becomes even more important. 5 See infra pt. I. 6 Edward P.J. Corbett, Classical Rhetoric for the Modern Student 99 (2d ed., Oxford U. Press 1971); 4 Marcus Fabius Quintilianus, Institutio Oratoria 355 (Loeb Classical Library) (H. E. Butler trans., Harv. U. Press 1921). When one of the multi-volume works by Quintilianus or Cicero is cited in this article, it is cited first by Loeb Classical Library volume number, then by author, then by title, and then by page number. 7 Pl.'s Pet. Writ. of Cert., McCreary County v. ACLU, 125 S. Ct. 2722 (2005) (available at 2004 WL 1427470) [hereinafter Pl.'s Pet. Writ. of Cert.]. 8 Id. 9 449 U.S. 39 (1980). Fall 2006 With amici like these 7 Because the McCreary case addressed controversial, high-profile issues, numerous briefs (29) were submitted in the case, including a brief on the merits from each of the parties and twenty-seven amicus briefs.10 Predictably, the briefs varied widely in quality and, as the preceding epigraphs show, rhetorical style. In one way or another, most of them underestimated the tone-setting potential of the opening pages. This miscalculation ignores the fact that, simply by virtue of their placement, these pages are psychologically important. Like all good advocates, Cicero understood the importance of psychological primacy. If he evaluated the briefs filed in McCreary, especially their questions presented, tables of contents, and argument summaries, he would be disappointed at the way the advocates begin. He would find that they repeatedly squander the rhetorical opportunities available in the opening sections of their brief. Instead of crafting those sections to maximize their rhetorical impact, the brief writers rely too much on vague abstractions, they 10 See Br. of Respt., McCreary County v. ACLU, 125 S. Ct. 2722 (2005) (available at 2005 WL 176670) [hereinafter Br. of Respt.]; Br. of Petr., McCreary County v. ACLU, 125 S. Ct. 2722 (2005) (available at 2004 WL 2851009) [hereinafter Br. of Petr.]. The following briefs are in support of Respondents: Amicus Br. of Legal Historians and Law Scholars (available at 2005 WL 166586) [hereinafter Legal Historians' Brief]; Amicus Br. of Baptist Joint Committee et al. (available at 2005 WL 166927) [hereinafter Baptist's Brief]; Amicus Br. of Council for Secular Humanism and International Academy of Humanism (available at 2005 WL 92335) [hereinafter Secular Humanism's Brief]; Amicus Br. of Freedom from Religion Foundation (available at 2005 WL 65494) [hereinafter Freedom from Religion's Brief]; Amicus Br. of Atheist Law Center et al. (available at 2005 WL 68040) [hereinafter Atheist Law Center's Brief]; American Atheists' Brief, supra n. 2; and Amicus Br. of Anti-Defamation League and Philip A. Cunningham (available at 2004 WL 2911167) [hereinafter Anti-Defamation League's Brief]. The following (and majority of) briefs are in support of Petitioners: Amicus Br. of American Humanist Association et al. (available at 2004 WL 2911173) [hereinafter American Humanist's Brief]; Amicus Br. of Conservative Legal Defense and Education Fund et al. (available at 2004 WL 2812087); Amicus Br. of Judicial Watch, Inc. (available at 2004 WL 2812098) [hereinafter Judicial Watch's Brief]; Amicus Br. of the Becket Fund for Religious Liberty (available at 2004 WL 2825467) [hereinafter Becket Fund's Brief]; Amicus Br. of Ashbrook Center for Public Affairs and Ohio Senator Bill Harris (available at 2004 WL 2825469) [hereinafter Ashbrook Center's Brief]; Amicus Br. of Eagle Forum Education & Legal Defense Fund (available at 2004 WL 2825470) [hereinafter Eagle Forum's Brief]; Amicus Br. of the United States (available at 2004 WL 2831788) [hereinafter United States' Brief]; Faith and Action's Brief, supra n. 1; Amicus Br. of Pacific Justice Institute (available at 2004 WL 2851010) [hereinafter Pacific Justice's Brief]; Amicus Br. for the States of Alabama et al. (available at 2004 WL 2851012) [hereinafter Alabama's Brief]; Amicus Br. of the Family Research Council, Inc. and Focus on the Family (available at 2004 WL 2851013) [hereinafter Family Research's Brief]; Amicus Br. of Thomas More Law Center (available at 2004 WL 2851014) [hereinafter Thomas More's Brief]; Amicus Br. of Foundation for Moral Law, Inc. (available at 2004 WL 2851217) [hereinafter Moral Law's Brief]; Amicus Br. of American Liberties Institute et al. (available at 2004 WL 2866648); Amicus Br. of American Center for Law and Justice (available at 2004 WL 2866649); Amicus Br. of WallBuilders, Inc. (available at 2004 WL 2959879); Amicus Br. of the Rutherford Institute (available at 2004 WL 2825468); Amicus Br. of National School Boards Association et al. (available at 2004 WL 2802966); Amicus Br. of the American Legion (available at 2004 WL 2851008); and Amicus Br. for the States of Minnesota et al.
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