The Rhetorical Demands of Law

Lawyers don't ask `what is the truth', but rather `what does the evidence show', I often comment to students who find the observation provocative, rather than routine. This functional approach is akin to the Holmesian `bad man' who looks at law as a set of rewards and detriments, not as a moral code to be internalized.

The subject is elegantly explored in Jack Balkin and Sanford Levinson's 2006 essay Law & the Humanities:

There is, however, an important feature of professional legal education that has a strong connection to the humanities, at least as classically conceived: rhetoric. Simply put, lawyers are rhetors. They make arguments to convince other people. They deal in persuasion.

Practicing lawyers represent clients, and they make arguments that support their client’s interests. They do not actually have to believe what they say; rather, they need to produce arguments that their audience will believe.

To that end, they will borrow from any source and from any species of learning they can to construct arguments that will persuade their audience and help their client win.

This point is the often asserted disconnect between the Olympian detachment of the academy and the practicing lawyer, but as Balkin and Levinson point out, the Rhetorical orientation is deeply embedded in law schools because of their function as professional trainers.

This SSRN link will bring you to the full text. Thanks to Ian Weinstein for the tip.