November 13, 2011 Rebuttal

Few rhetorical tactics carry a punch as strong as the rebuttal, whether in a courtroom, on a political stage or in a debate. The lawyer, who in the heat of the action, is able to conceive the perfect rebuttal is bound to prevail. It is the art of the devastating rejoinder and the perfect bon mot. The worse is to be sitting there while your best argument is eviscerated pretending it doesn’t hurt. Over the years I have collected a few of these for my own enjoyment. Well, perhaps more than that, also as a reminder how powerful a weapon it is and to fear my opponent’s use of it.

1. Ernest Cannon

My all time favorite comes from Texas plaintiff’s lawyer Ernest Cannon. Charles Mattingly, a young oil worker for Shell Oil, suffered an injury that required part of his esophagus to be replaced with a section of his large intestine. Shell’s lawyer told the jury that Mattingly’s problems were part motivational and would not be cured by giving him Shell’s money. “The smartest person that I ever knew never went to high school. He died when I was twenty and all he left me was words. He said, ‘Son, you live in the only place in the world where if you work hard, you can get ahead.’”

Cannon got up, looked the defense lawyer right in the eye and rebutted: “When your daddy was lecturing you to do good and be a good boy and go to school and represent big companies and do all these wonderful things that you are so proud of, you did not have your large intestine in your throat to swallow through. You were not swallowing through the item of your body that is supposed to be passing the feces through it . . . .  See, what we are going to do is, we are going to crush your throat, and put your large intestine in it, and make you have diarrhea, make you throw up, make you where you are humiliated in public, and then we are going to rear back and say, ‘Come on, motivate yourself like I did when my daddy told me to go to law school.’ Shame on you!”

2. Oklahoma City

“This is my brother – he is in your hands.” Michael Tigar holding Oklahoma City bomber Terry Nichols by the shoulders and choking back tears.
“The men, women and children in the Alfred P. Murrah building on April 19, 1995, are your brothers and sisters as well.” Prosecutor Larry Mackey.

3. The Missing Body Rebuttal

One of the most famous legal urban legends is the missing body case rebuttal. It has taken on legendary status through many iterations. While in LA, I think I found the genesis of the true story. The LA Times has a court’s blog which has the original newspaper stories for many decades past. This one comes from the blog. The real case that gave rise to all the stories about the argument in the missing body murder trial was prosecuted by Miller Leavy, a  deputy district attorney, who successfully prosecuted Caryl Chessman, the notorious “Red Light Bandit” who terrorized Los Angeles in the 1940s. He prosecuted L. Ewing Scott in California’s first “no body” case. Scott’s wife had disappeared without a trace and her body never found and a rumor had the body buried under the 405 freeway which was under construction near their home.

During the 1959 murder trial of Scott (176 Cal. App. 2d 458), his lawyer argued in his final argument that no body had been found and that she “might walk through the courtroom door right now.” “Aha” he said as the jurors looked towards the door, “that shows you are not convinced beyond a reasonable doubt that she is dead.” Then in rebuttal Leavy noted that everyone looked at the door “except one – that of the defendant. And he didn’t bother to look because he knows she’s not going to walk through that door because he killed her.”

4. Joe Jamail

Joe Jamail was suing for a widow and he asked the jury for a lot of money. The theme of the defense lawyer’s final argument was trying to hold down the damage award. “Ladies and gentlemen, it reminds me of when I was a young boy. . . . I had a date on Saturday night. And I asked my father for twenty dollars so I could take my date out, but I only really wanted ten dollars.” Jamail got up and said: “Ladies and gentlemen, you have now seen first hand the kind of people we’re dealing with. Their lawyer even lies to his own daddy.”

5. Political Rebuttals

QUAYLE: It is not just age; it’s accomplishments, it’s experience. I have far more experience than many others that sought the office of vice president of this country. I have as much experience in the Congress as Jack Kennedy did when he sought the presidency. I will be prepared to deal with the people in the Bush administration, if that unfortunate event would ever occur.
WOODRUFF: Senator Bentsen.
BENTSEN: Senator, I served with Jack Kennedy, I knew Jack Kennedy, Jack Kennedy was a friend of mine. Senator, you are no Jack Kennedy. (Prolonged shouts and applause)

When, in the 1984 election his age had become an issue, the 73-year-old Reagan turned to Mondale, his opponent, and said: “I’m not going to exploit for political purposes my opponent’s youth and inexperience.” Even Mondale chuckled.

“Governor Reagan, again typically, is against such a proposal,” said incumbent Jimmy Carter in the 1980 presidential debate. “There you go again,” replied Reagan. Mr. Reagan’s way with words could be devastating.

6. Film

My favorite film rejoinder comes from Switch. JoBeth Williams walks out of an expensive high rise building dressed in a beautiful mink coat and is surrounded by PETA-type protestors.
Fur protestor: Do you know how many poor animals they had to kill to make that coat?
JoBeth Williams: Do you know how many rich animals I had to fuck to get this coat?

I collect these examples to remind me to anticipate any possible rebuttal. Be careful of metaphors, anecdotes and stories which can be turned against you. You don’t want to be sitting silently in your chair while they are rhetorically shoved down your throat.