Blogging every morning helps me activate the language center in my brain. It also often brings me into contact with the PC language cops, compulsive editors, and what I suppose could be called “special-interest watchdogs.” While these readers are generally critical of my words, their comments at least prove to me that someone “out there” is reading me. An added bonus is: I’m directly engaged in a conversation with my readers.

Sidebar: I hope I respond to everyone respectfully. If I inadvertently respond defensively, I apologize. Writing is truly a lonely life, and a full-time writer has few social interactions. It tends to make one testy, at best.

Blogging about trials also gives me an excuse to indulge my morbid curiosity about murder and my healthy curiosity about human language—at the same time. The more televised trials I watch, the more I’m convinced that courtroom rhetoric is the essence of the drama inherent in a trial.

Every trial is a battle or words. The words make the difference between innocence and guilt in every trial where the identity of the guilty party or the nature of the crime is in question.

Unfortunately, it’s a rare trial lawyer who understands this completely and deeply. Prosecutors tend to rely on what they consider to be emotional appeals and far-fetched metaphors to associate the defendant with the crime; defense attorneys tend to rely on the elusive concept of reasonable doubt. Jurors, I can assure you from personal experience, don’t need more emotion injected into a trial and can’t understand the concept of reasonable doubt because it’s meaningless.

Worse yet, the rhetoric most lawyers use in court is simply intellectually dishonest.

Chess Equilibrium

Recently I’ve become addicted to chess. I’m now reading chess theory, a topic a year ago I would have thought to be less interesting than watching paint dry. Now I can’t get enough of it.

What fascinates me about chess theory is that it’s identical to rhetorical theory: chess and rhetoric both are about maintaining a balance of power in a human transaction for as long as possible and then tipping the scale in favor of your side only when you know you have a sure way to success.

The rhetoric of chess and of the American adversarial system both are based on balance. The classical image of blind justice holding a scale is perfectly apt. In a trial the jury sits and watches the scale, first as it tips in the prosecution’s favor, then as it tips back toward equilibrium, if the opposing side puts on a good defense.

International Master Jeremy Silman, in his book The Reassess Your Chess Workbook: How to Master Chess Imbalances, says, “The correct way to play chess is to create an imbalance and try to build a situation in which it is favorable for you. . . . [A]n imbalance is not necessarily an advantage. It is simply a difference.”

What’s true of chess, I think, ought to be true of courtroom rhetoric.

Tipping the Scales with Words

In a trial, the only thing that juries have to rely on is words: lawyers’ statements, witness testimony, and the judge’s instructions. When physical evidence is sent into the jury deliberation room, all the jurors can do to interpret it is parse the words they heard in court about it.

Despite this, lawyers, witnesses, and judges don’t often speak clearly—and therefore forcefully—about the evidence, and consequently jurors have little to rely on during the jury deliberations.

In general, I suppose lawyers currently view the rhetorical problem in a courtroom as attack and counter-attack. The rhetoric is battle rhetoric—understandably, when a person’s life and liberty are at stake. However, a juror doesn’t want to sit silently by while a life-and-death struggle takes place before her eyes. The simple fact of having to contemplate a real crime is sufficiently emotional. A juror wants to hear rational arguments, facts, words that will point the way to a civilized conclusion to a dreadful situation.

Sidebar: Consider the trial of Raynella Dossett-Leath, for example. The prosecution side of the scale was that the victim was found dead with a singe bullet wound, but three bullets were fired; therefore it was murder. All things being equal, the defense would have presented a simple alibi case and then evidence of a possible third-party killer. But, in fact, there was an imbalance: there was strong evidence of suicide. However, the defense did not abandon its alibi case, thus tacitly agreeing that murder was a possibility. Evidence of suicide was a difference, which it failed to use to its advantage. While the defense attorneys were skillful orators, the substance of their rhetoric was battle, not balance (in my non-lawyer’s opinion).

If prosecutors wouldn’t overcharge defendants, the emotionalism in court would drop dramatically. If they stopped using inflammatory language in their opening and closing statements, jurors would feel more confident that their verdict would be acceptable to the community regardless of what it was.

If defense attorneys would focus on respectful cross-examination, they wouldn’t offend the jury quite so often.

Sidebar: In yesterday’s post I referred to the Andrade trial: Andrade was charged with murdering a transgender person, Angie Zapata. A watchdog corrected me about the issue of who insisted on referring to the victim as ‘she’ and that the defense offended the victim’s family members during cross-examination by referring to her as ‘he.’ Given what the defense was trying to achieve, that rhetoric was unwise. Not only did it likely rub the jury the wrong way, but the effect was to stress that Andrade had engaged in sexual activity with a biological male—when, it seemed to me, the defendant’s greatest fear was that in prison he would be subject to sexual assaults if it were known that he was (shall we say) AC/DC.

Most importantly, though, I feel a good defense is one that seeks to restore the balance. For every expert witness a prosecution presents, the defense should present two. For every investigative witness the prosecution puts on, the defense should put on at least one private investigator or former police officer to assess the police investigation. For every eye witness another eye witness; for every victim’s advocate or friend and family, another character witness for the defendant.

Edward Lasker, an American chess master of the past century, stressed that chess is a game of “all things being equal.” In chess, the player who moves first when all things are equal is the one who wins—white.

Essentially, “all things being equal” in a courtroom, too, the jury would have to find a defendant not guilty. That’s what the inarticulate phrase “beyond a reasonable doubt” is supposed to mean. Unfortunately, the prosecution always moves first; and this advantage is not—in fact—obviated rhetorically by permitting the defense to rebut the prosecution’s case by going second, when the prosecution is given the last word. Under such rules of conduct in court, the defense can never restore equilibrium.