Eloquent silence teaches lawyers about power of the pause
For readers interested in the subject of using eloquent silence and employing pauses and timing in legal arguments and storytelling, I recommend a Journal of Legal Education article (autumn 2017), “Talk Less: Eloquent Silence in the Rhetoric of Lawyering,” by Bret Rappaport, a lawyer and adjunct professor of English at Dominican University.
Rappaport provides an overview of the cognitive theory explaining how silence works on listeners and readers. He presents captivating illustrations from practice and popular culture: Johnnie Cochran’s use of poetics and pauses in his closing argument on behalf of O.J. Simpson; Supreme Court Justice Ruth Bader Ginsburg’s decision to remain silent and forgo writing a concurring opinion in Obergefell v. Hodges; the late Justice Antonin Scalia and Bryan Garner’s advice to attorneys on how to use the lowly pause in oral arguments; and an Illinois federal district court judge’s admonition: “When you’re winning, shut up! If you keep on talking, I just might change my position.”
Borrowing from popular culture, Rappaport revisits the memorable silence used by fictional lawyer Jake Brigance in the climactic closing argument of John Grisham’s A Time to Kill—a 20-second silence engaging jurors’ imagination with a clever Amsterdam-like twist.
He also discussed Don Vito Corleone’s equally masterful use of silence in a scene from The Godfather: The young Corleone is approached by a landlord who has offended him by evicting a woman from her apartment and refusing Corleone’s request to allow her to return. The landlord has learned that Corleone is a powerful mobster.
The landlord now says he has changed his mind. He is met by Corleone’s silence. Uncomfortable, the landlord sweetens his offer—the woman, her son and the dog can return, and he will keep the rent the same instead of raising it. More silence. The landlord, now fearful, lowers the rent.
Rappaport’s accessible and engaging article also reintroduces readers to classical rhetoric, suggesting how varieties of intentional silences may be named, tamed and incorporated into lawyers’ toolkits, supplementing intuitive choices in an analytical framework when making strategic decisions about how, when and whether to use silence.
For example, Amsterdam’s and Obama’s eloquent silences are illustrative of what Rappaport labels “ ‘aposiopesis,’ from the Greek phrase ‘aposiōpaein,’ meaning ‘to become totally silent.’ ”
Rappaport observed: “Such stoppage in midsentence can show respect for the audience, or trigger surprise or other emotion, or just serve as a transition. ... Used sparingly, aposiopesis is an effective rhetorical tool, like the live news report from Herbert Morrison describing the Hindenburg disaster, when he stopped speaking completely as the airship burst into flames.”
Perhaps the most profound example, he said, “aposiopesis is employed by the Lord in Genesis: ‘And the Lord God said, “Behold, the man is become as one of us, to know good and evil. And now lest he put forth his hand, and take also of the tree of life and eat, and eat and live forever.” ’ God can take liberty with how often to use aposiopesis, but a lawyer’s resort to aposiopesis should be infrequent, for only then does it have impact.”
Coda
Both Amsterdam and Obama made bold, high-stakes rhetorical choices in their eloquent and daring use of aposiopesis—prolonged silences expressing a purposeful, artistic intentionality that moved their audiences beyond the literal meanings of their spoken words.
Were these special cases? Yes. Do successful lawyers typically employ various silences as strategic rhetorical and storytelling tools in the same fashion, although perhaps in less dramatic situations? Yes, of course you do.
Philip N. Meyer, a professor at Vermont Law School, is the author of Storytelling for Lawyers. This article was published in the July 2018 ABA Journal magazine with the title “Sounds of Silence: From a 1960s federal prosecutor to a former president, what lawyers can learn about the power of the pause.”
