Rhetoric Revisited
ferent, yet have something in common. For
example: “On the final examination, several
students went down in flames because they
neglected to study.”14 The sentence implies
an evocative, albeit perhaps overstated,
comparison between an airplane being shot
down and a student failing a final examination. Metaphor’s cousin, simile, is an explicit comparison between two things that are
fundamentally different, yet have something
in common.15 The explicitness of the comparison is reflected in the presence of “like”
or “as” in the sentence. The following sentence illustrates a simile: “Like an arrow, the
prosecutor’s question went directly to the
point.”
But less familiar tropes are often especially powerful. One is “metonymy,” which
substitutes some attributive or suggestive word for what is actually meant, such
as “the Crown” for the British state or “the
brass” for military officers.16 Journalists who
cover international relations use metonymy
regularly when they write that “Washington
and Tehran negotiated a nuclear nonproliferation treaty” or “Washington has failed
to approve the Kyoto Protocol.” Another
useful trope is “antanaclasis,” the repetition
of a word in two different senses.17 For example, Benjamin Franklin said: “If we don’t
hang together, we’ll hang separately.”18
These examples show that attention
to rhetoric, particularly arrangement and
style, can help the modern lawyer to write
briefs and memoranda that persuade by
appealing to both the head and the heart
of the reader. The remainder of this article
will show how Justices Black and Brennan
used arrangement, with a pinch of style, to
achieve that end.
Hugo Black: Writing for the
Common Person
Hugo Black’s writing stands out for its
clarity and simplicity. Black wanted his prose
to be accessible to ordinary people so they
could understand and appreciate the constitutional protections they enjoyed. He
thus avoided complicated language, preferring a conversational style that frequently included “I” or “me.” Black’s opinions
were not dull, though; he knew how to enliven them with vivid imagery and figures of
speech. His best opinions were also models
of storytelling and rhetorical arrangement.
The first paragraph of Black’s majority
opinion in Patton v. Mississippi, in which the
Court overturned the conviction of a black
man because blacks were excluded from
jury service, underscores the clarity of his
prose.19
The petitioner, a Negro, was indicted in
the Circuit Court of Lauderdale County,
Mississippi, by an all-white grand jury,
charged with the murder of a white
man. He was convicted by an all-white
32
THE VERMONT BAR JOURNAL • SUMMER 2016
petit jury and sentenced to death by
electrocution. He had filed a timely
motion to quash the indictment alleging that, although there were Negroes
in the county qualified for jury service,
the venires for the term from which the
grand and petit juries were selected
did not contain the name of a single
Negro.20
The first paragraph concludes by noting
Lauderdale County’s history of excluding
blacks from juries, after which the second
paragraph identifies the particular question
before the Court.
In the face of the foregoing the trial
court overruled the motion to quash.
The Supreme Court of Mississippi affirmed over petitioner’s renewed insistence that he had been denied the
equal protection of the laws by the deliberate exclusion of Negroes from the
grand jury that indicted and the petit
jury that convicted him. We granted
certiorari to review this serious contention.21
A clearer identification of the facts of a
case and the resulting legal question on appeal is difficult to imagine. Justice Black’s
opinion in Patton reflects his talent for arrangement; like the ancient rhetoricians,
he knew that a persuasive discourse begins
with a clear, compelling introduction, and
he surely crafted one in Patton.
Black was equally adept at explaining his
reasoning, as the following excerpt from his
majority opinion in Gideon v. Wainwright
shows.22 In Gideon, the Court required
states to appoint counsel for indigent defendants charged with felonies.
Governments, both state and federal, quite properly spend vast sums of
money to establish machinery to try defendants accused of crime. Lawyers to
prosecute are everywhere deemed essential to protect the public’s interest in
an orderly society. Similarly, there are
few defendants charged with crime,
few indeed, who fail to hire the best
lawyers they can get to prepare and
present their defenses. That government hires lawyers to prosecute and
defendants who have the money hire
lawyers to defend are the strongest indications of the wide-spread belief that
lawyers in criminal courts are necessities, not luxuries.23
This passage succeeds, primarily because it
articulates what ordinary people know: litigants hire lawyers if they can afford to do
so, because legal representation is necessary in modern litigation. In felony cases,
therefore, representation should not be limited to those who can pay. Still, well-placed
figures of speech – anaphora in the third
sentence, and antithesis in the last sentence
– add a dollop of style to the passage’s effective arrangement.
www.vtbar.org