The Basics of a Legal Argument
What is a legal argument? A legal argument is a statement of evidence in support of a conclusion of law. Hence, there are a number of different types of legal arguments. For example, we recognize legislative history contained in briefs filed with the courts, as compelling arguments, if they are cited in a government brief filed with the court. The same arguments, even when they precisely refute the statutory construction or judicial determination, are not considered compelling legal arguments because they are not cited in a government brief. Private individuals can present issues of law to courts without any evidence , as long as they can show specific facts that allow the court to access a question of law and specific facts that allow the court to rule on the question. There are many examples of legal arguments found in a wide variety of cases, from business litigation matters to personal injury claims. They are not limited to a specific type of case, but actually are present in every type, including criminal law matters, family law cases, real estate disputes, etc.
Form of a Legal Argument
The typical structure of a legal argument is as follows: introduction, statement of the facts, statement of the law and legal standards, application of law to the facts, and conclusion. You should always try to begin your analysis by providing readers with a vivid picture of the argument you will be presenting. Why is this important? Because you help paint a picture for the reader that you will later fill in with all the technical details that support your position.
You should avoid bogging down the opening of your argument with unnecessary detail; however, your initial description should alert the reader to both your conclusions and the reasoning that they will follow in this section. In a motion, the standard for the introduction is fairly simple: state the relief you are requesting, i.e., a new trial, leave to amend a complaint, etc. This allows the reader to know immediately whether the rest of your entire argument is relevant to them. In preparing an appellate brief, your introductory paragraph gives the reader their first insight into your style and the biggest issue you are faced with articulating to the court, what is the basic legal error the trial court made? The statement of the facts section of your argument can quite literally make or break your case. If this section is done well, then you have an excellent chance of winning your appeal. A good factual statement is the key to your appeal. For most lawyers, the easiest way to get all the case facts into their brief is to provide a chronological narration of the facts in the trial court record. The statement of the law and legal standards is not a section that requires a lot of effort. In this section, you section cite to statute, elements of the law, or case law that supports your argument. Most of these citations will come from your research, so this is generally the easiest section. The application of law to the facts section is where you take the law, apply it to the facts presented in the statement of the facts section and argue why you should win. For instance, if you have cited a statute in the statement of the law and legal standards section in which the legal issue is the right to a jury trial, you would then argue how the facts presented in the statement of the facts section apply to that statute. Finally, each legal argument ends with a conclusion (often not titled). This is where you summarize your points and request the exact relief you would like the court to provide you. Generally speaking it should be a quick few sentences that reiterate the request you are making within the body of the argument and make it known that you believe the ruling sought is appropriate.
Example Arguments in Legal Writing
Harrison v. Adams
Let’s envision a hypothetical case. Plaintiff is suing the City for injuries suffered while using a public park. Defendant’s Motion in Limine seeks to exclude evidence of similar accidents that occurred in the past. Defendant argues that the other incidents had different causes and factual contexts, thus rendering evidence of them inadmissible.
Plaintiff responds:
Defendant bears the high burden of showing that other accidents are so factually dissimilar that they are not relevant. However, the other incidents need not be identical to the accident which now befalls my client. This sounds throughout MOTION A as though defendant is anticipating to be able to use evidence of other accidents to "impeach" my client’s factual version of events. This must not be confused with relevance. The events discussed in MOTION A are certainly relevant to the issue of defendant’s negligence and foreseeability.
In the recent case of Doe v. Calumet City, 534 N.E. 2d 398 (1989), the Illinois Supreme Court allowed testimony that several rapes had happened in the same area over a 3-4 year span. This testimony was admitted to show defendant’s knowledge of danger in the area and the standard of care which defendant should observe. Evidence of similar accidents may likewise be offered to show foreseeable dangers. Defendant fails to meet the "burden of establishing a lack of substantial similarity." Roberts v. Karate U.S.A., 642 N.E.2d 1193, 1196 (1994).
Plaintiff’s Brief in Support of its Motion for Summary Judgment
Preliminary Statement
Plaintiff herein moves this Honorable Court for the entry of an order granting partial summary judgment in plaintiff’s favor pursuant to 735 ILCS 5/2-1005. Specifically, plaintiff herewith moves the court for the entry of an order granting partial summary judgment as to the issue of liability regarding defendant’s breach of its contract with plaintiff.
Standard
Under our Rule [insert your local rule], the court must grant summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with [insert your local rule]. In defendant’s deposition and admission to both discovery requests, [] defendant admitted to having entered into a contract with Mr. Plaintiff. This contract clearly sets forth the parties’ intention to be bound by the terms therein. Specifically, [].
The terms of the contract speak to the intent of the parties; specifically the obligations of the parties towards one another. Once plaintiff sustained an injury due to the actions of [defendant], defendant had a duty to furnish [Mr. Plaintiff] with a safe work environment. However, this [defendant] failed to do. In doing so, defendant breached the contract it had with plaintiff. There can be no other conclusion than that the undisputed material facts herein establish that defendant breached the contract it had with plaintiff. Accordingly, plaintiff is entitled to judgment as a matter of law.
Pitfalls of a Legal Argument
Common mistakes in legal arguments can undermine a lawyer’s credibility and damage their case, regardless of how brilliant their ideas are. One of the most frequent errors is the lack of clarity. Sometimes a lawyer will try to sound "smart" by using unnecessarily complicated language or presenting an idea in opaque terms to sound more knowledgeable. This is rarely a good idea. Your audience is busy and has probably spent years in school and in the workforce mastering the same areas of the law you have. Sounding authoritative and wise is not synonymous with sounding unintelligible. In fact, if you present the law in an unclear fashion, your audience might assume that you don’t understand it well enough to explain it clearly.
Another common mistake is overcomplexity. Make no mistake; we’re not advocating that you use simple language when a natural choice of words would be complex. We are not arguing against the use of the word "amicus curiae", for example. However, there are lawyers who attempt to use $10 words (or $100 words) where their dictionary is only indicating a $1 word should do. Using excessively complex language can make your point less clear and decrease your audience’s understanding of a legal theory .
Also, conflicting ideas can create a legal argument that is difficult to follow. If you write, "I am arguing two points: W, which is based on ABC and DEF, and Y, which is based on XYZ" you are likely to confuse your audience. If you make two legal arguments, make them clearly and separately. You might write, "This court should rule in favor of the plaintiff because of the defendant’s failure to use reasonable care. It should also rule in favor of the plaintiff due to malicious intent by the defendant." Using such a structure, the judge will be able to make sense of the two different legal theories, because they are separated from each other.
In addition, few lawyers take the time to support their legal arguments with sources. They might provide a vague legal conclusion, but they often do not take the time to support that conclusion with evidence. It does not matter if your logic is stellar if the legal conclusions you present are not backed up with supporting documentation. If you present 2 legal arguments, support both legal arguments. If you present 3, support all 3. While this might seem cumbersome and pedantic, the higher authority of your audience should always hold more weight than your own opinion. Besides, there is no legal penalty for being exhaustively thorough.
How to Persuade with Techniques
The courtroom is not only a place for logical, reasoned arguments but also a forum for emotional appeal under limited circumstances. Emotions can play a critical role in making your case to the judge. You should never show anger, disdain, or frustration towards opposing counsel, court personnel, or even the jury when you are trying a case before a jury. Understand that jurors are not our friends. They will judge us as we try our cases to them. Successful trial lawyers treat jurors as a judge would. That is, with the utmost respect. Treat everyone with respect when trying a case. Do not engage in insults or sarcastic comments. The goal is to get the jury to focus on the issues before them and not the personalities.
You cannot, of course, have it both ways. If your client has been badly injured or treated unjustly, don’t be afraid to present the emotional side of the case to the judge or jury. Be aware, however, that emotions can run dangerously close to the point of bias. If you place too heavy an emphasis on an appeal to emotion, the judge or jury may dismiss your case on the ground that you have not proved your case, as a matter of fact, but rather, have merely asserted it based upon some perceived injustice. Thus, an emotional appeal that is written too strongly can backfire and become a poisoned arrow.
The key ingredient in a successful appeal to the emotions of the judge or jury is restraint. Moments of silence that specific facts or court room reactions supply can be the most moving of all emotional touches. When used judiciously, carefully measured in context, they are sure to add effective zest to an argument. Courtroom dramas make great use of this technique. For example, remember the sudden cut away from the courtroom scene to the juror’s tearful face in the animated movie "A Pup Named Scooby-Doo." The panelists saw only the attorney’s suddenly silent, shocked expression, but the jurors had already received the immediate impact of the dramatic moment.
Stories are more easily understood than a lot of data. Logical arguments are more complicated than the tableau of a story that is readily understood. Communicating through a story is often more important than the logical explanation. People are emotional creatures, not only rational ones. Persuasive arguments must strike a balance between the intellectual appeal and the emotional appeal.
Boosting Legal Writing Skills
Aside from using the previous blog post and purchasing the book, here are some suggestions for improving legal writing in general. If you have any suggestions let me know so that I may add them to the list:
Sign up for my free tips newsletter, which is full of resources for improving your legal writing and a variety of other interesting articles.
Practice, practice, practice: Draft pleadings, motions, correspondence, contracts, etc. Doing so will sharpen your legal writing skills.
Buying books:
If you are a law student or a new lawyer, Simplicity Breeds Clarity: A Lawyer’s Guide to Drafting Clear Litigation Documents by John Maag Jr., a Partner at Perkins Coie LLP in Seattle, Washington, is a must read. If you prefer reading on your handheld, you can also download the PDF version from his website . Law students and new lawyers can even use it as a textbook if they cannot afford to purchase drafting books.
Simply Style: The Laws of Address, Punctuation, and Truth by Susan Marks. This book is an oldie but goodie in legal writing circles; I have had it for years. Marks maintains that each type of writing (i.e., persuasive, expository, or technical) has its own set of rules for syntax and punctuation.
Garner’s Modern English Usage by Bryan A. Garner. Garner is the thought leader in the areas of linguistic thought and legal writing. One of my favorite blogs is Garner’s Usage Tip of the Day. Garner’s site also has lists of his articles, of which I own several. He has a notable series of books on legal writing which I will write about soon. There are so many more books I can recommend for improving legal writing, however the above will do for now.