1. Invitational Rhetoric and Participatory Defense
Kate Bonner
Introduction
How we present ideas and frame concepts with the language we use can have an
enormous impact on how our messages are perceived. The importance of this concept is
magnified in the use of language in the legal system. How lawyers frame ideas and present
concepts can help shape the perceptions of a judge or jury and potentially impact the outcome of
a particular case.1
Once one understands the importance of language to the legal field, it is essential to begin
working to cultivate new ways of using language to help clients and potentially influence the
justice system. One way to cultivate new approaches to the legal system is through the
intermingling of invitational rhetoric and participatory defense. Both invitational rhetoric and
participatory defense are new concepts in the realm of communication studies and criminal
defense. This paper will address the concept of participatory defense and how invitational
rhetoric could potentially influence this new movement.
Participatory Defense
Participatory defense is described as “a community organizing model for people facing
charges, their families, and communities to impact the outcome of cases and transform the
landscape of power in the court system.”2 The term was originally coined by Raj Jayadev in
2007 in an effort to improve public defense.3 The concept of participatory defense is based upon
1 See Generally John Conley, William O’Barr, and E. Allan Lind, The Power of Language:
Presentational Style in the Courtroom, 1978 Duke L.J. 1375 (1979).
2 Raj Jayadev, What is “Participatory Defense”, ALBERT COBARRUBIAS JUSTICE PROJECT,
http://acjusticeproject.org (last updated Nov. 7, 2015).
3 Janet Moore, Marla Sandys, and Raj Jayadev, Make Them Hear You: Participatory Defense
and the Struggle for Criminal Justice Reform, 78 Alb. L. Rev. 1281, 1282 (2014-2015).

2. a need to bring community into the court process and hold the system as a whole accountable.4
The goal is to rebalance power in criminal justice systems and create greater transparency,
accountability, and fairness by giving the persons facing criminal charges more of a voice.5
In theory, participatory defense is a positive social movement intending to change our
corrupt criminal defense system. It is important to understand exactly how this theory turns into
action to be able to understand how invitational rhetoric could be used to further the goals. First,
through training, communities learn how to better interact, demand and partner with lawyers that
are appointed to defend their loves ones.6 Also, they learn to understand, challenge and utilize
information in police reports and court transcripts and participate in effective public protests.7
Finally, communities and family members learn to create social biography videos and use other
media to influence better outcomes in their loved one’s case.8
While there are many aspects of the participatory defense movement, the interaction
between the court and the families and the use of social biography videos are the particular
concepts this paper will focus on. As the use of the participatory defense model increases, the use
of social biography videos in public defender offices increases as well. This summer was the first
time the Tuscaloosa County Public Defenders Office utilized the participatory defense social
biography videos for a client facing sentencing before a judge. As an extern for the Tuscaloosa
County Public Defenders Office, I was able to assist on this particular project. It was refreshing
to see friends and family come together to actively support their loved one.
4 Jayadev, supra note 2.
5 Moore, Sandys, & Jayadev, supra note 3, at 1281.
6 Id. at 1285.
7 Id.
8 Id.

3. Social biography videos are films that tell the life story of the person facing
charges through the eyes of the people who know them best.9 They not only include explanations
of the person’s past, but also their future and their potential for change, redemption, and
transformation.10 It is truly a creative project in the hands of the defense attorney, the person
facing charges and their families. The videos can be used in many stages of the process;
however, my only experience was during a sentencing hearing. One judge mentioned that the
social biography videos “humanize defendants, destroy stereotypes and leave judge’s with a far
better understanding of the person standing before them.”11 Besides social biography videos
laying out a person’s character, family, friends and other individuals in the community can write
letters or create documents that relay the same type information to the judge.12 Circumstances
can make a difference when considering why and how a person ended up in a certain place.
Ultimately, social biography videos allow the judge to see the defendant as a person, understand
their circumstances and hopefully be able to see that person as more than the crime they
committed.
The benefits of the participatory defense movement have led to many beneficial
outcomes including rehabilitation programs rather than prison time, dismissed and reduced
charges and acquittals.13 “Time served to time saved” is one of the slogans and center pieces for
the participatory defense movement.14 The program encourages a count of jail time not served
with the use of family involvement through participatory defense.15 While this movement has
9 Id. at 1286.
10 Id.
11 Id.
12 Jayadev, supra note 2.
13 Id.
14 Id.
15 Id.

4. undeniable benefits, the criminal justice system still needs massive amounts of work and
improvement.16 Ultimately, the goal of participatory defense is to change “the landscape of
power in the court system.”17 To achieve this goal, an analysis of the unique theory of rhetoric
known as invitational rhetoric must be considered and possibly implemented.
Invitational Rhetoric
Rhetoric is the “faculty of observing in any given case the available means of
persuasion.”18 Invitational rhetoric is an alternative rhetorical theory grounded in principals of
“equality, immanent value and self determination.”19 The purpose of invitational rhetoric is to
offer an invitation to enter and understand the rhetor’s world and see it as they do.20 Invitational
rhetoric does not seek to change or persuade the listener, but instead the use of invitational
rhetoric is based in an offering to understand and validate.21 This type of rhetoric is meant to be
“nonhierarchical, nonjudgmental, and nonadversarial” which would lead to “an understanding
that engenders appreciation, value and a sense of equality.”22 This concept is not about
domination of ideas but about “understanding and appreciation of another’s perspectives rather
than the denigration of it simply because it is different from the rhetor’s own.”23 “Invitational
16 See Janet Moore, G forces: Gideon v. Wainwright and Mathew Adler’s move beyond cost-
benefit analysis, 11 U. CIN. L. REV. 1025, 1026 (2012).
17 Jayadev, supra note 2.
18 Linda L. Berger, Alternative Conceptions of Legal Rhetoric: Open Hand, Closed Fist
(forthcoming 2015-2016) (quoting Aristotle).
19 Sonja K. Foss & Cindy L. Griffin, Beyond Persuasion: A Proposal for an Invitational
Rhetoric, 62 COMMUNICATION MONOGRAPHS 1, 5 (1995).
20 Id.
21 Id.
22 Id.
23 Id. at 6.

5. rhetoric is characterized by the openness with which rhetors are able to approach their
audiences.”24
Feminism is at the core of the invitational rhetoric theory.25 “Invitational rhetoric
provides a mode of communication for women and other marginalized groups to use in their
efforts to transform systems of domination and oppression.”26 The criminal justice systems is one
of the most oppressive systems in our society and utilizing this feminism based theory to change
the way we communicate in our court system could help change this system of domination to one
of hope. Linda Berger suggests that an application of this feminist rhetoric can imply a reliance
on genres which may include personal stories, poetry, and also narratives.27 These same genres
are the ones intended for use in the participatory defense movement. Also, feminist rhetoric uses
pathos, or emotional appeal, instead of aggression and insistence on persuasion.28 It seems
understanding the origins of invitational rhetoric as it is embodied by feminism does not threaten
its potential impact on the criminal justice system. Appealing to emotion and utilizing
understanding can help further the use and impact of social biography videos on the courts. The
notion that the basis of feminism is all about understanding and emotion brings up a whole
different set of arguments; however, that is not the point of this particular paper. Ultimately, the
way in which feminism is presented as support for invitational rhetoric only strengthens the
notion that the new rhetorical theory can improve the participatory defense movement.
24 Id.
25 Linda L. Berger, Alternative Conceptions of Legal Rhetoric: Open Hand, Closed Fist
(forthcoming 2015-2016).
26 Foss & Griffin, supra note 19, at 16.
27 Berger, supra note 25.
28 Id. at 3.

6. Central to invitational rhetoric is the idea of an offering.29 Essentially, the rhetor is
offering what they currently know or understand and personal narratives can be a form of
support for a rhetor’s position.30 However, offering is not a means to get to an end, which may
cause problems in its support of participatory defense. “Change may be the result of invitational
rhetoric, but change is not its purpose”31 Although participatory defense allows for the judge to
see persons charged of crimes as real people, ultimately, the story telling and offering of
perspectives is to help influence a judge’s sentencing. The need for a better end in participatory
defense cannot be denied. It seems impossible for a family to present their love, support and
stories as a form of rhetoric without the hope and want for a shorter sentence. As mentioned
before, one of the central themes of invitational rhetoric is “time served to time saved.”32 The
goal is to stop overcrowding prisons and a method to effect that change is participatory defense.
The question then becomes whether any way still exists to utilize some of the basic ideas
supporting invitational rhetoric in participatory defense.
Another aspect that is key to the theory of invitational rhetoric is the non-adversarial
component.33 Unfortunately, when people are speaking on behalf of someone else with
explanations about their life and their story, there is an undeniably adversarial component. It is
uncertain whether this component of invitational rhetoric can be overcome to allow its influence
in participatory defense. However, if both sides of the interaction, the judge and the accused
party, could potentially look at each other more as equals, maybe invitational rhetoric could be
29 Foss & Griffin, supra note 19, at 7.
30 Id.
31 Id. at 6.
32 Jayadev, supra note 2.
33 Foss & Griffin, supra note 19.

7. an aspect of social biography videos and participatory defense. A judge has to be open to hearing
the rhetor.
The external condition of the exchange is supposed to be nonhierarchical.34 This aspect of
the environment seems almost as impossible to circumvent as the nonadversarial component. A
judge making a decision about what is to happen to a family member’s life is by nature
hierarchical. In the same sense, there is a need for a sense of equality between the speaker and
the listener. A potential criminal does not seem equal to a judge who has spent their life,
hopefully, upholding the law. However, if one looks at the interaction from the family member’s
perspective, maybe equality does exist between the family member and the judge. After all, they
are the rhetors and are not facing criminal charges. Accessibility of the courts could possibly
change some of the power imbalances that exist in the court. If people in general and families
specifically in this example weren’t as afraid of the court system as they are now and otherwise
saw it as a system of justice, maybe the power imbalances wouldn’t be so evident and
detrimental to understanding.
Another component of invitational rhetoric is the idea of trust. Berger explained in her
presentation at the symposium that trusting the information the speaker is presenting is essential
in invitational rhetoric.35 A judge may be impacted by what a family member says about a loved
one; however, the judge may not be able to escape a skeptical mindset. The judge may ask
himself whether the family member is trying to lie for the defendant. Ultimately, the atmosphere
and external conditions of the court system has everything to do with whether this certain
34 Id.
35 Linda Berger, Alternative Perspectives on Legal Rhetoric: Persuasion, Invitation, and
Argument, RHETORICAL PROCESS AND LEGAL JUDGMENTS SYMPOSIUM. (Sept. 18,
2015).

8. rhetorical approach could be accepted and helpful. It seems manipulation of the external
conditions of the court could lead to acceptance of invitational rhetoric through participatory
defense and better outcomes for criminal defendants.
Against the Theory
Dr. Meredith Bagley from the University of Alabama Communications Department
claims this theory has been deemed a very controversial theory of rhetoric.36 She states the
theory is a “way to approach rhetoric from a radical feminist perspective.”37 The backlash from
the theory presented itself in a few ways. First, “like all radical feminist theories they risk
asserting an universal womanhood.”38 This idea seemed to present itself in my earlier argument.
Women are unique and cannot be universally classified as understanding and emotional. Dr.
Bagley gave the example that the theory “assumes women are gentle and good listeners which
essentializes sex/gender.”39 While this may be true and possibly troublesome, asserting an
universal womanhood over the language used in a court room to present the story behind a
person facing criminal charges and possible changing their life seems like a relatively harmless
trade off.
Dr. Bagley also states that “the theory of invitational rhetoric also leaves very little room
to account for ideological, partisan, dangerous rhetoric that truly is interested in harming some
36 Email from Dr. Meredith Bagley, Assistant Professor, The University of Alabama, Department
of Communication Studies, to Kate Bonner, Law Student, The University of Alabama School of
Law (Oct. 26, 2015, 12:38PM) (on file with recipient).
37 Id.
38 Id.
39 Id.

9. and protecting others.”40 “There is no way to account for these instances of violent rhetoric if we
are asked to invite and engage in an invitational rhetoric way.”41 Although this could be a
problem when implementing invitational rhetoric in other forums, there does not seem to be a
need for violent rhetoric when utilizing participatory defense and social biography videos. The
families are not out to give a judge a particular ultimatum or threaten the court in any way. They
are simply inviting the judge to understand their family member as they understand them.
Ultimately, there will always be benefits and consequences from the language we use. However,
if we are looking at changing the criminal justice system it seems to be time to look for more
radical approaches. Maybe implementation of a more radical theory is the only way to effect
change.
Considerations
Although this paper has focused on the use of invitational rhetoric through participatory
defense, it would be interesting to research and analyze whether a lawyer speaking on behalf of a
client can in any way use invitational rhetoric and benefit from it. Berger presented the idea that
president’s wives offer invitational rhetoric when they speak on behalf of their husbands.42 They
know them and there is an essential level of trust that people have in what the particular wife is
saying.43 It would be interesting to consider whether this same level of trust could ever exist
when a judge listens to a lawyer speak on behalf of a client. Maybe there will always be
40 Id.
41 Id.
42 Linda Berger, Alternative Perspectives on Legal Rhetoric: Persuasion, Invitation, and
Argument, RHETORICAL PROCESS AND LEGAL JUDGMENTS SYMPOSIUM. (Sept. 18,
2015).
43 Id.

10. skepticism on behalf of the judge when she considers the attorney’s representation of their client.
The opportunity to delve into this question would make for interesting research.
Conclusion
Ultimately, it is hard to say whether invitational rhetoric can be present when a family
member is pleading with a judge to allow their loved one to live free instead of incarcerated.
There is some level of need for persuasion in that scenario. However, it seems there may be a
greater need for mutual understanding. A judge must enter a final judgment; therefore, it seems
unlikely to escape an adversarial environment and enter one of invitation. However, maybe the
only reason this concept seems unattainable is because our criminal justice system is not open to
it. Change must happen in the realm of criminal defense. This needed change started with the
participatory defense movement and implementation of invitational rhetoric into the language
used in the court room will only propel the change forward.