§1.1 Introduction PDF

§1.1 Introduction Every legal advocate faces the challenge of creating order out of chaos. The advocate must take an undisciplined mass of information and argument and reshape it into a tool capable of converting the most skeptical decision maker to the advocate's point of view. How to accomplish...

§1.1 Introduction Every legal advocate faces the challenge of creating order out of chaos. The advocate must take an undisciplined mass of information and argument and reshape it into a tool capable of converting the most skeptical decision maker to the advocate's point of view. How to accomplish this daunting feat is the subject of this book. Effective advocacy does not come naturally to many. Most people do not think in an orderly way. Thoughts do not traverse the mind like a military parade, four abreast in neat rows and columns; they race in and out of consciousness from every direction and in no obvious order. Not surprisingly, most people argue the way they think—haphazardly, without clear structure, and often without recognizing or consciously understanding the logical connections between their own arguments and contentions. Beginning law students are often told that the proper way to present a legal argument is to: “set out the law and then apply it to the facts.” This advice is sound as far as it goes; unfortunately it does not go very far, and it provides little in the way of concrete guidance. This book aims to fill that gap by offering a systematic method for the construction of persuasive legal arguments. The centerpiece of the method presented in the following pages is the syllogism, and the book's thesis can be simply stated: all legal argument should be in the form of syllogisms. The term syllogism is doubtless one that will strike fear into the hearts of many lawyers and law students; it looks like a mathematical term, and lawyers are notorious for their disdain of all things mathematical. Lawyers like to see the law as warm, fuzzy, humanistic; to them, the law is not the stuff of hard-edged logic, nor is it amenable to mathematical manipulation. All this is true, of course—the law is fuzzy and humanistic, and it can be as illogical as the humans who create it. The trick of persuasive legal argument, however, is to take a fuzzy subject and make it seem mathematical. Remember that the judge is every bit as despondent as the advocate when confronted with the chaotic thicket of law and facts in any given case. Indeed, the judge wants nothing more than to be led out of this jungle by a confident, reliable guide—“Right this way, Your Honor. Watch out for that snake, Your Honor.” Syllogistic argument provides the requisite appearance of certainty. It makes the outcome of a case seem as certain and as mechanical as the output of a mathematical equation, and it achieves this effect not by actual mathematical operations, but, paradoxically, by exploiting human intuition.