THE SHADOW CURSOR: “Aristotle, meet Capra”

Lawyers should take a lesson from the great Hollywood directors because an informal survey of law clerks and judges regarding their pet peeves related to lawyers reveals a common theme: Avoid hyperbole. (Spoiler Alert: if you’ve not yet watched The Lion King, Old Yeller, Bambi, or Ghost, read no further.)

Do you remember your most emotional movie moments? When the stampede killed Simba’s father in The Lion King? When Old Yeller was euthanized? When Bambi’s mom was shot? The final scene of Ghost? The common denominator of these powerful scenes was not so much the tragedy we witnessed. It was the relatively understated way in which they were presented.

The audience members were allowed to feel their emotions. They weren’t told how to feel them with “in-your-face” used-car salesmanship. A great movie director presents a compelling message to elicit an emotional response. A mediocre director just attempts to elicit an emotional response without a worthwhile message.

Aristotle noted that the “forensic style (of oratory) is more highly finished” than the style “addressed to public assemblies.” And when addressing a “single judge, with whom there is very little room for rhetorical artifices,” the style is even more finished. This is because the judge “can take the whole thing in better, and judge of what is to the point and what is not.” (Rhetoric, Book III, Chapter 11 at ¶1413.)

As the arguable father of Western rhetorical thought, Aristotle knew that any jurist already skilled in “ars fossura” (loosely translated as the “art of shoveling”) would probably know the difference between what is forensic and what is fossura. When a judge knows that a lawyer is trying to shovel over a weak part of an argument, the strong parts can and do get buried with it.

More than two thousand years after Alexander the Great sat on Aristotle’s knee, film director Frank Capra admitted to discovering the paradox of effective dramatic technique after trial and error: “I thought the drama was when the actors cried. But drama is when the audience cries.”

Hyperbole is a technique that makes it less likely to achieve the intended emotional response because “crying” one’s argument through the use of hyperbole is paradoxically less likely to make the judge “cry.”

A good lawyer will bring an appropriate dramatic quality to his or her argument – but not bury the argument under the drama. So, before briefing or arguing a case, be sure to visualize Bambi  . . .  not “Buy a used Buick!”