The book, The Tools of Argument, contains a plethora of thinking tools that will assist the legal practitioner to construct better arguments. The following book summary presents the most important ideas in a condensed 8-minute read.
Now, let's begin.
Fundamentals of Legal Thinking: Analysis & Synthesis
The basic logical form of legal thinking is:
If X, Y, Z, then A.
Separate the components of a crime or claim, named ‘elements’, then analyse each element separately.
After the analysis is complete, observe whether all the conditions are met for a crime or claim to be made. Generally, if any of the elements are missing, then the legal claim will fail. This process is named 'synthesis'.
Example: ‘...if the elements of the crime of murder include intent, causation, death, and lack of excuse, we analyze each of these components separately and then synthesize the analyses for a complete understanding.’
In the first paragraph, or section, of your argument, break the crime or claim into elements: analyze the claim. In subsequent paragraphs or chapters, examine each element separately to determine whether it is factually satisfied. Once you are finished, it is easy to “synthesize” or look at all the elements and see whether they comprise the crime or claim in question. This is the concluding paragraph or chapter.
The Incompleteness of Law
There are two forms of incompleteness. (1) The meaning of a word and (2) the law cannot anticipate all possible circumstances in the future.
This can include statutes, case law, and contracts.
All laws, and all contracts, are inevitably incomplete. They cannot be written in advance specifically to anticipate every possible circumstance. Courts or other decision-making mechanisms may be assigned the job of completing the contract or the legislation ex post. Other times there is no legal or contractual rule to apply - a gap in our structure of rules.
The Loose Thread Strategy
Identify a gap in the opponent's argument, attack it, and don’t let go.
...more often than not, there may be gaps in the chain of logic or evidence. Once we find a gap, we just need to attack it until the entire argument falls. My late colleague, Keith Highet, one of the United States’ greatest practicing international lawyers, referred to this as the loose thread strategy: pull on it and the fabric of your opponent’s argument unravels. Highet was a bulldog who would clamp the opponent’s loose thread in his teeth and pull viciously and happily.
3 Logical Fallacies
1. Ad Hominem
Ad hominem is the fallacy where one discredits the source rather than discrediting the argument itself.
Argument → 'My expert opinion is that the defendant took inadequate care to prevent the injuries that the plaintiff sustained.'
Counterargument → 'You are a socialist.'
Counter-counterargument → 'My political perspective, religion, nationality, or sexual orientation are all irrelevant to my expert opinion, which is based on the application of a special methodology and years of experience.'
An Exception: Bias
It is appropriate to impeach an expert witness on the basis not only of the quality of the witness’s expertise and preparation but also on the basis of apparent bias. For example, if the expert witness has appeared many times in similar matters, always on the same side, opposing counsel may point out that this expert witness appears to have a bias and may even have been hired in consideration of the bias.
A to B, does not equal, B to A.
An “if-then” statement has an antecedent (if) and a consequent (then). If the if-then statement is true, every time there is an antecedent, there will be a consequent. But it will not necessarily be true that every time there is a consequent there is also an antecedent - other causes might result in the consequent.
Example: (i) If she is a lawyer, then she is expert in the law. (ii) She is expert in the law. (iii) Therefore, she is a lawyer.
You can readily see that expertise in law does not necessarily constitute someone a lawyer. Many politicians, journalists, judges, and scholars become experts in the law without becoming lawyers.
3. The Red Herring
A red herring is committed when one uses facts that are not relevant to issue at hand, and yet acts as if they are. It's almost like a form of psychological distraction.
Argument → ‘Facts X, Y, and Z are the basis of my claim against you.’
Counterargument → ‘In this type of case, X and Y are relevant, but Z is not. And without W, they are insufficient to complete a claim against me.’
1. Distinguish Between the Precedent and Your Case
Example: The past case is different to this case, therefore the past case is not applicable.
2. Find Exceptions:
Find cases that are exceptions to the rule.
1. Forum Shopping
Different courts can result in different outcomes.
The plaintiff usually gets a first shot at determining where the case will be brought, and sophisticated plaintiffs will choose the court that will apply the law that will result in their victory.
For example, lawyers know that in an interstate or international case, there is a question as to what is the applicable law: the law of party A’s home (say, Kansas), the law of party B’s home (say, Japan), the law of the place where the transaction occurred (say, France), or something else. They also know that different courts have different approaches to determining which law to apply. Furthermore, different bodies of law may have sharply different approaches to determining responsibility. Depending on which court you are in, one law might apply as opposed to another, and the law that applies could determine who wins.
2. No Jurisdiction
Courts are agents of the state, authorized and empowered by the state to decide specified cases and to mete out punishment or remedies as appropriate. All courts are limited in their jurisdiction— in their power to hear and decide cases.
Why challenge jurisdiction when the next court will do the same job anyway?
First, if the case can be thrown out of one court, it increases the litigation expenses to the plaintiff significantly - the plaintiff might simply give up. Second, the alternative court might apply a different and more favorable set of legal rules, and a skilled lawyer representing the defendant will ensure that this is so before seeking dismissal in the first court.
3. Court Bias
Argue that the court is bias against you, and should not be able to run the case. This can occur in two ways: 1) pressure the opposition to withdraw 2) pressure the judge to recuse herself.
Chevron began in the 1990s by arguing that the U.S. courts were the wrong place to hear [their] case about environmental harms in Lago Agrio, Ecuador.
Chevron’s motive was to avoid according the plaintiffs certain of the benefits of being in U.S. courts: liberal rules for gathering evidence against the defendant, contingency fees so that poor plaintiffs can afford to engage lawyers, class actions so that many plaintiffs can band together, and, most importantly, large judgments.
But despite the disadvantages of litigating in Ecuador, the plaintiffs prevailed and won an $18 billion judgment.
Then, Chevron in effect reversed course, arguing that Ecuador was, as it turned out, a terrible place to litigate, with corrupt and biased judges.
4. Reframe the Case
The person who makes the complaint has an opportunity to frame it in the light most favorable to him. While this does give a great deal of power to the plaintiff, it is available to the defendant to reframe the case, adding other issues to consider, and claim that they constitute exceptions to the rule or defenses to claims of violation of the rule. Or, the defendant might argue that the case is not the type of case that the plaintiff framed at all but a different kind of case.
Argument → ‘Fire retardants are needed to prevent fires.’
Counterargument → ‘Fire retardants cause cancer and brain damage.’
Counter-counterargument → ‘Restrictions on the use of fire retardants will disproportionately harm minorities.’
While it is definitely true that two wrongs do not make a right, it is possible that my obligation to compensate you for the wrong that I did you can be counterbalanced, and reduced, by your obligation to compensate me for the wrong you did me.
1. Find Missing Links
The evidence may become unreliable if your opponent cannot establish that it was gathered properly or preserved properly.
Was it legal to video tape these events? We have a video of the defendant pulling the trigger, but how do we know the gun was loaded or the videotape was produced at the time the victim was shot? Are we sure there was not another shooter? How do we know the videotape was not subject to tampering later?
2. The Brandeis Brief
The Brandeis Brief means applying policy oriented and non-law arguments in a brief.
More than a century ago, a young lawyer from Boston was confronted with the task of convincing the U.S. Supreme Court that when the U.S. Constitution guarantees all citizens equal protection under the law, equal does not actually mean equal.
The lawyer needed to convince the court that when the citizens are female, the protection must be greater than for males, at least when it comes to working in a laundry. Indeed, the argument was that “equal protection” means unequal treatment. In order to win his case, the lawyer needed to convince the Court that an Oregon law prohibiting women from working in any “mechanical establishment, or factory, or laundry” more than ten hours during any one day did not violate the rights of women.
What was the young lawyer to do? If he simply argued to the Court that, in his experience, women were delicate flowers requiring nurture and sunlight - rather than drudgery - then, although he might well have received wise nods of agreement from the nine elderly male justices he sought to convince, he risked the justices concluding that their wives and daughters might find such chauvinism offensive, and to avoid unpleasantness at home, the justices might be inclined to decide the case against his client.
No, he needed to provide the justices with something other than personally-held beliefs on which the justices could hang their bowler hats when they returned to hearth and home.
The lawyer, Louis Brandeis, who eight years later would himself become a member of the Supreme Court, assembled all of the extant social science research on the detrimental impact of long work hours on the health of women. As a result of this evidence, the Supreme Court upheld the Oregon law.
Trustworthiness AS a Long Term Strategy
Lying = short-term win, for long-term loss.
You may win a case by lying, however, this can result in a bad reputation. Overtime, you will become known as untrustworthy and this can negatively affect your future persuasiveness.
...an experienced lawyer will never lose sight of the crucial importance of maintaining the judge’s trust in his credibility and that of his witnesses. If a decision-maker concludes that a witness is not to be believed with regard to one matter, then, human nature being what it is, the decision-maker will view the remainder of the witness’s testimony through a lens of heightened skepticism, if not insurmountable disbelief.
The best attorneys - the cream of the persuasive crop - also recognize that the credibility of the legal advocate is itself crucially important. If a lawyer loses the trust of a decision-maker in one dispute, the lawyer’s ability to persuade that decision-maker in subsequent disputes will be compromised. This is the lesson of the story of “The Boy Who Cried Wolf.”
Furthermore, decision-makers, be they judges, bosses, or prospective partners, do talk to one another. One of their favorite topics of discussion is the reputation in the community of the legal advocate for telling the truth. Ethical considerations aside, if you hope to be a persuasive advocate for your own interests or the interests of others, lying to win the argument in which you are currently engaged is not worth the price of losing one’s reputation for truthfulness.
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