The Tools of Argument

1. Lawyers Master Analysis and Synthesis

The heart of legal thinking: Analysis and Synthesis.

Breaking Down Complexity. Lawyers excel at dissecting intricate legal issues into manageable components. This involves identifying the elements of a claim, crime, or contractual obligation and then scrutinizing each element independently. For example, in a murder case, the prosecution must prove intent, causation, death, and the absence of a valid excuse.

Synthesizing for Understanding. After analyzing each component, lawyers synthesize their findings to form a comprehensive understanding of the issue. This holistic view allows them to construct compelling arguments and anticipate potential counterarguments. This approach is not limited to law; it's a valuable skill in any field that requires critical thinking and problem-solving.

Analytical Writing. This method is also the secret to good legal writing. The first paragraph breaks the claim into elements, subsequent paragraphs examine each element separately, and the concluding paragraph synthesizes all the elements to see whether they comprise the crime or claim in question.

2. Procedure Dictates the Game

Argue About Arguing: Why Procedure Matters.

Procedural Advantages. The rules of procedure can significantly impact the outcome of a legal dispute. Lawyers understand that maximizing procedural advantages is crucial for winning on substance. This includes selecting the most favorable forum, arguing for the application of advantageous rules, and challenging the opponent's procedural tactics.

Strategic Maneuvering. Procedure and substance are intertwined, and often inseparable. If your opponent has the better substantive argument, counter with procedural arguments that can change the substantive rules or that can make your opponent’s argument more difficult to make.

Beyond the Courtroom. The importance of procedure extends beyond the courtroom. In business negotiations, governmental operations, and even interpersonal relationships, understanding and leveraging procedural rules can lead to more favorable outcomes. For example, in a corporate dispute, the CFO might object, saying this is not appropriate to be decided by the SVP for sales and marketing, but should be decided by the corporate chief executive officer.

3. Jurisdiction Defines the Battlefield

Argue That It’s None of the Tribunal’s Business: There Is No Jurisdiction.

Power and Scope. Jurisdiction, the power and scope of application of legal rules and processes, is a fundamental aspect of legal argument. Lawyers often challenge the jurisdiction of the court or tribunal to hear a case, aiming to shift the battle to a more favorable arena. This can involve questioning the court's authority over the defendant, the type of matter at issue, or the applicable law.

Forum Shopping. Sophisticated plaintiffs will choose the court that will apply the law that will result in their victory. The process of figuring out one’s preferred court is what lawyers call “forum-shopping.”

Beyond Legal Settings. The concept of jurisdiction applies to various decision-making bodies, from corporate boards to religious courts. Challenging the authority of a decision-maker can be a powerful tactic for avoiding unfavorable outcomes. For example, in Israel, Jewish, Druze, Moslem, and Christian religious courts have exclusive jurisdiction over specified matters, such as marriage and divorce, within their religious communities.

4. Interpretation Shapes Reality

The power to interpret is the power to rule.

Words as Weapons. Law is primarily composed of written rules, and lawyers are experts at interpreting these rules to their client's advantage. The ability to shape the meaning of texts, whether contracts, statutes, or constitutions, is a powerful tool for influencing outcomes. This involves employing various interpretive techniques, such as plain meaning, original intent, and contextual analysis.

Plain Meaning. Everybody likes “plain meaning” as an interpretive rule. It seems so simple. We just want to enforce the law or the contract as it is written. The problem, as I have stated above, is that the words on the paper are, by necessity, incompletely specific.

Beyond the Legal Realm. The art of interpretation is not limited to legal settings. In everyday life, we constantly interpret the meaning of words and actions, and understanding the techniques of interpretation can help us navigate complex social situations and resolve conflicts. For example, in a society in which abortion is thought to be legal, if opponents can seek to redefine—or to define—a fetus as a person protected by the rule against murder, the result is that abortion is illegal.

5. Precedent Provides the Foundation

Consistency is the watchword of the law.

Building on the Past. Arguments grounded in precedent, or past actions, carry significant weight in legal systems. Consistency is a core value, promoting predictability, fairness, and objectivity. By demonstrating that a desired outcome aligns with established precedent, lawyers can strengthen their case and increase their chances of success.

Common Law. The common law system has brought this consistency-based style of argument to its highest form, and so it is worthy of our study. Australia, Canada, Ghana, Hong Kong, India, Ireland, Israel, Jamaica, New Zealand, Pakistan, Singapore, Uganda, the United Kingdom, and the United States are some of the principal common law countries.

Beyond the Courtroom. The principle of precedent extends beyond the legal system. In business, politics, and personal relationships, referencing past practices and decisions can lend credibility to arguments and facilitate agreement. For example, in business, two employees might argue that they should get similar raises. Good human resources practice suggests that consistency of treatment is important, so it is necessary to determine the ratio decidendi for a differential raise.

6. Facts Are the Ammunition

You let me control the facts, I’ll let you control the law, and I will always win.

The Power of Facts. While lawyers have no special power over facts, their ability to appreciate and present facts is crucial for winning cases. This involves identifying the salient facts, gathering evidence, and constructing a compelling narrative that supports their client's position. The facts that we identify tell us what legal rules are likely to be applicable, and the legal rules tell us what facts are salient.

Evidence and Missing Links. Think of an apparently simple case of murder. We have video that shows the defendant pulling the trigger on a firearm aimed at the victim and the victim is mortally wounded. We have a corroborating eyewitness account. What must we know in order to determine that the defendant is guilty? First, can we rely on the video or eyewitness account?

Beyond Legal Settings. The ability to analyze facts and construct persuasive arguments is valuable in any field. Whether it's presenting a business proposal, advocating for a policy change, or resolving a personal conflict, mastering the art of factual argumentation can significantly increase your influence. For example, if you want to claim that the high-priced restaurant you dined at last night gave you food poisoning, you will have to prove that they served you tainted food, and that the tainted food caused you to be sick.

7. Rhetoric Amplifies Persuasion

It is a guilty pleasure to be persuasive when you are wrong.

The Art of Persuasion. Rhetorical tricks, while potentially dishonest, can be effective tools for amplifying persuasion. Understanding these tricks is crucial for identifying and countering them, both in legal settings and in everyday life. This includes recognizing fallacies of causation, ad hominem attacks, and other deceptive tactics.

Non Sequitur. One example of a non sequitur is where an advocate argues that because something is covered in a contract, all similar items are covered. So, if a lease contract prohibits the lessee from keeping dogs and cats on the leasehold premises, it does not follow that snakes are also forbidden.

Beyond the Courtroom. The ability to recognize and counter rhetorical tricks is a valuable skill in any field that involves persuasion. Whether it's negotiating a deal, presenting a sales pitch, or engaging in political debate, understanding the art of rhetoric can help you protect yourself from manipulation and effectively communicate your message. For example, in the famous murder trial of the former football star O.J. Simpson, a glove was found at the crime scene. Its match was found at Simpson’s estate. The gloves contained DNA evidence from Simpson and the victims. The glove from the crime scene had been soaked in blood, and police had frozen and unfrozen it several times. The prosecutor, goaded by Simpson’s lawyer, Johnnie Cochran, asked Simpson to try on the glove from the crime scene in court, and it seemed too tight for Simpson. In his closing remarks, Cochran repeated, “If it doesn’t fit, you must acquit.”

8. Responsibility Rests on Reason

Fragile as reason is and limited as law is as the expression of the institutionalized medium of reason, that’s all we have standing between us and the tyranny of mere will and the cruelty of unbridled, unprincipled, undisciplined feeling.

The Reasonable Person. The legal system often relies on the concept of the "reasonable person" as a standard for determining responsibility. This involves assessing whether an individual acted with the care and diligence that a reasonable person would exercise in similar circumstances. This standard applies to various areas of law, from torts to contracts.

Due Diligence. A similar “reasonable person” concept applies in a wide variety of business law settings, although it got its start in U.S. securities law—law relating to the sales of stocks and bonds. This is the concept of “due diligence,” which applies a reasonable person standard to the quality of investigation by certain persons involved in a securities transaction.

Beyond Legal Settings. The principle of acting reasonably extends beyond the legal system. In business, personal relationships, and everyday decision-making, striving to act with reason and due diligence can lead to more ethical and responsible outcomes. For example, in order to be a reasonable person, you should engage in a risk assessment of your acts. A full risk assessment would look like a risk-adjusted cost-benefit analysis, examining (a) the probability of the risk eventuating, (b) the magnitude of harm if the risk eventuates, (c) the benefits of the action that entails the risk, and (d) the availability and cost of less risky alternative measures.

Last updated: March 11, 2025