Legal Argument: The Structure and Language of Effective Advocacy (3rd Edition) PDF

Legal Argument Legal Argument The Structure and Language of Effective Advocacy THIRD EDITION James A. Gardner Christine P. Bartholomew Copyright © 2020 James A. Gardner and Christine P. Bartholomew All Rights Reserved Library of Congress Cataloging-in-Publication Data Names: Gardner, James A., 1959- author. | Bartholomew, Christine P., author. Title: Legal argument : the structure and language of effective advocacy / by James A. Gardner, Christine Bartholomew. Description: Third edition. | Durham, North Carolina : Carolina Academic Press, LLC, Identifiers: LCCN 2020009514 | ISBN 9781531017279 (paperback) | ISBN 9781531017286 (ebook) Subjects: LCSH: Trial practice--United States. | Communication in law--United States. Classification: LCC KF8915.G28 2020 | DDC 347.73/52--dc23 LC record available at https://lccn.loc.gov/2020009514 CAROLINA ACADEMIC PRESS 700 Kent Street Durham, North Carolina 27701 Telephone (919) 489-7486 Fax (919) 493-5668 www.cap-press.com Printed in the United States of America Table of Contents Online Materials Preface to the Third Edition Preface to the Second Edition Introduction PART I The Basic Method Chapter 1 · The Syllogism Model Synopsis §1.1 Introduction §1.2 Syllogisms §1.3 The Power of Syllogistic Reasoning §1.4 Legal Arguments as Syllogisms §1.5 The Incompleteness of the Analogy Approach Chapter 2 · Determining Your Conclusion from Your Position Synopsis §2.1 What Should I Argue? §2.2 The Elements of a Presumptive Position §2.3 The Adversary System: A Sorting Mechanism §2.4 Determining Your Presumptive Positions §2.5 Actual Positions §2.6 The Core Position: Relief [2.6.1] Ultimate Relief in the Case [2.6.2] Relief Sought in a Motion §2.7 Converting Positions into Syllogisms §2.8 The Need to Commit to a Position Chapter 3 · Building the Premises Synopsis §3.1 Introduction §3.2 The Premises Must Yield the Desired Conclusion §3.3 All Terms Must Match §3.4 The Specification of Any Two Terms Specifies the Third §3.5 The Premises Must Be True §3.6 A Recursive Process §3.7 The Indeterminacy of Law Chapter 4 · Grounding the Premises Synopsis §4.1 The Requirement of Grounding §4.2 Directly Grounded Premises §4.3 Indirect Grounding through Nested Syllogisms §4.4 Multiple Grounding §4.5 Grounding in Controversial First Principles PART II Elements of Persuasive Legal Argument Chapter 5 · Read to Build Synopsis §5.1 Introduction §5.2 Instrumental Reading §5.3 Active Reading [5.3.1] Attend to Context [5.3.2] Keep First Impressions Provisional [5.3.3] Self-Challenge §5.4 The Ultimate Skill: Active Instrumental Reading Chapter 6 · The Major Premise Synopsis §6.1 Introduction §6.2 The Basic Strategy §6.3 Establishing Certainty of Authoritativeness [6.3.1] Sources of Authority [A] Binding Authority [B] Hierarchies of Binding Authority [C] Non-Binding Authority [6.3.2] Direct Grounding in Targeted Authority [A] Quote Statutes or Cite Their Interpretations [B] Cite Case Authority [C] Use Multiple Sources of Authority [6.3.3] Indirect Grounding of the Major Premise §6.4 Establishing Certainty in Content [6.4.1] Using Tests [6.4.2] Using Step Analysis [6.4.3] Using Factor Analysis [A] Multifactor Analysis [B] Spectrum Tests [C] Balancing Tests §6.5 A Factor Analysis Can Always Be Extracted Chapter 7 · The Minor Premise Synopsis §7.1 Introduction §7.2 Establishing Certainty of Authoritativeness [7.2.1] Ground Factual Assertions in Evidence [7.2.2] Types of Evidence [7.2.3] Appeals to Common Sense §7.3 Establish Certainty of Content by Using Brute Facts [7.3.1] Brute Facts and Compound Facts [7.3.2] Break Down Compound Facts into Brute Facts §7.4 Elaborate Key Legal Terms [7.4.1] Legal Aspects of the Minor Premise [7.4.2] Identify the Key Terms [7.4.3] Tell the Judge: “Here's How You Know It When You See It” §7.5 A Warning: Conclusory Arguments [7.5.1] The Problem of Conclusory Arguments [7.5.2] How to Cure Conclusory Argument: The “Why? Why? Why?” Test §7.6 A Grounded Minor Premise Guides Factual Development Chapter 8 · Summary of the Method PART III Putting It All Together Chapter 9 · Building a Complete Argument Synopsis §9.1 Introduction: What Do I Think, and Why? §9.2 Example 1: Opposing a Rule 15(a) Motion [9.2.1] The Problem [9.2.2] The Facts [9.2.3] The Law [9.2.4] The Argument §9.3 Example 2: Endangered Species Act Violation [9.3.1] The Problem [9.3.2] The Facts [9.3.3] The Law [9.3.4] The Argument §9.4 Troubleshooting PART IV Writing a Legal Argument Chapter 10 · Writing a Legal Argument Synopsis §10.1 A Formula for Writing Arguments §10.2 Elements of the Formula [10.2.1] The Set-Up [A] Identification of the Target [B] State the Conclusion [10.2.2] Setting Out the Law [A] Identify and Introduce the Relevant Doctrine or Provision [B] Explicate the Law [C] Set Out the Controlling Test, Step Analysis or Factor Analysis [10.2.3] Apply the Law to the Facts [10.2.4] Bolster with Analogous Precedent §10.3 Clarity Always Takes Precedence §10.4 An Example of Reducing an Argument to Writing [10.4.1] The Outline [10.4.2] The Brief Chapter 11 · Don't Forget the Story Synopsis §11.1 Writing an Argument: A New Enterprise §11.2 Tell a Good Story [11.2.1] Begin at the Beginning [11.2.2] Introduce Things before Discussing Them [11.2.3] Give the Basic Facts [11.2.4] Use Detail to Paint a Vivid Picture [11.2.5] Better to Say Too Much than Too Little [11.2.6] When Clarity Is Persuasion Chapter 12 · Common Problems of Written Legal Advocacy and How to Avoid Them Synopsis §12.1 Problems of Storytelling [12.1.1] Stress What Is, Not How We Know [12.1.2] Poor Quoting Practices [12.1.3] Give a Roadmap in the Introduction [12.1.4] Explain Changes of Subject or Focus §12.2 Lack of Structure (“String of Beads”) §12.3 Conclusory Argument [12.3.1] What Is Conclusory Argument? [12.3.2] Where Can an Argument Be Conclusory? [12.3.3] Recognizing Conclusory Arguments in Context: The Problem of “Heft” [12.3.4] The Basic Fix: Take Your Time [12.3.5] An Example of Unpacking a Conclusory Argument [12.3.6] Avoid Overcompression [12.3.7] Don't Rush Analogies [12.3.8] You Have Enough Pages PART V Advanced Techniques of Persuasive Legal Argument Chapter 13 · Special Problems of Legal Advocacy Synopsis §13.1 The Big Case §13.2 No Controlling Authority [13.2.1] The Nature of the Problem [13.2.2] Grounding the Argument in First Principles [13.2.3] Justice, Morality, and Policy Chapter 14 · Responding to Arguments Synopsis §14.1 Affirmative and Responsive Arguments §14.2 Treat Your Opponent's Arguments Respectfully §14.3 Three Ways to Respond [14.3.1] Denial [14.3.2] Shifting Ground: Confession and Avoidance [14.3.3] Ignoring Arguments §14.4 Avoid Passivity [14.4.1] Failure to Take Charge [14.4.2] Reluctance to Accuse [14.4.3] Passive Language §14.5 Organizing Responses Chapter 15 · Common Tactics and Rhetorical Techniques of Effective Written Advocacy Synopsis §15.1 Presenting the Law [15.1.1] Backing Up Legal Contentions [A] Pile It On [B] Show Stability through Recency and Consistency [C] Universal Consensus [15.1.2] Calling Attention to the Legal Standard [15.1.3] Exceptions to Controlling Rules [15.1.4] Providing the Court with an Escape Route §15.2 Ways of Talking and Framing [15.2.1] Use a “Hook” [15.2.2] Get There First [15.2.3] Don't Ask Questions, Give Answers [15.2.4] The “Shared Struggle” [15.2.5] Use the Language of Fallback Arguments [15.2.6] Stretch or Contract the Facts to Suit Your Purpose [15.2.7] Build Up to Tear Down §15.3 What to Emphasize [15.3.1] Allocate Space Proportional to Importance [15.3.2] Don't Write a Treatise [15.3.3] Don't Make an Argument So Brief It Seems Like an Afterthought [15.3.4] Don't Make the Other Side's Case [15.3.5] Stress I Win, Not You Lose [15.3.6] Don't Stress Anticipatory Rebuttals [15.3.7] Don't Concede, Just Move On Chapter 16 · Professionalism in Advocacy Synopsis §16.1 Maintain Your Own Credibility [16.1.1] Show You're Not Making It Up [16.1.2] Be Accurate: Check Your Work [16.1.3] Deliver What You Promise [16.1.4] Maintain Stamina throughout the Brief §16.2 Be Fair and Generous toward the Opponent §16.3 Never Attack a Court or a Judge §16.4 The Author Does All the Work (Not the Court) Chapter 17 · The Ethical Limits of Argument Synopsis §17.1 The Ethical Dilemma §17.2 Official Constraints §17.3 Good Faith [17.3.1] Bad Faith: It's False [17.3.2] Bad Faith: No One Could Believe It [17.3.3] Good Faith: Winners and Losers [17.3.4] Maintaining Your Sense of Good Faith §17.4 The Settlement Option Index Online Materials Additional content for Legal Argument: The Structure and Language of Effective Advocacy (Third Edition) is available on Carolina Academic Press's Core Knowledge for Lawyers (CKL) website. Core Knowledge for Lawyers is an online teaching and testing platform that hosts practice questions and additional content for both instructors and students. To learn more, please visit: coreknowledgeforlawyers.com Instructors may request complimentary access through the “Faculty & Instructors” link. Preface to the Third Edition In the twenty-seven years since Legal Argument's initial release, legal education has changed—as have the students we educate. Few professors still adhere to the traditional format of the law school class, with its purely Socratic lectures and single exam at the term's end. Instead, law schools are integrating more experiential, skills-based teaching. Incremental assessments, recursive learning, and opportunities for feedback are increasingly the hallmarks of a well- designed law class. Partly, this change in legal education stems from a differing student population. Few of today's first year law students come armed with a wealth of experience in logic, rhetoric, or analysis. Most do bring, though, a healthy willingness to work hard and learn. We revised Legal Argument with these changes in mind. The third edition remains true to its initial design: it still is intentionally short and focused squarely on argument construction. It retains the five-part structure from the second edition, which starts by introducing syllogistic reasoning and then builds on that core structure to address principles of argument development and advanced persuasive writing. The revisions flesh out this structure. We added a chapter on critical reading skills, to provide students a solid starting point for building legal arguments. We expanded the examples and explanations throughout to aid students in making the connections necessary to construct complex legal arguments. Perhaps most helpful, though, are the new supplements to the book. The third edition is now accompanied by an interactive online platform. This platform includes numerous exercise sets. Each set corresponds with a particular chapter. The exercises are self-paced and allow students to self-assess their skill development. This edition also includes a teacher's memo with additional exercises, PowerPoint slides, and supplemental materials. These materials offer more fodder for hands-on experience with argument development. Finally, with the third edition comes a new co-author. We have spent countless hours over the last decade talking about teaching. This revised edition reflects many of those conversations. It has been a pleasure working with and learning from Jim. Jim and I are indebted to many people who assisted in this redesign. Thank you to our colleagues who offered ideas and feedback throughout this process. Special thanks to our students from whom we constantly learn how to be better teachers. From our research assistants (Ben Holwitt, Andrew Kij, and Nicolas Pistory), who kindly agreed to serve as guinea pigs for the online platform exercises, to the thousands of students we have taught, thank you. More personally, thank you most to Mark, Clara, and Hank. You make life better. CPB Buffalo, NY 2020 Preface to the Second Edition In the fifteen years since I wrote the first edition of this book, a new generation of law students has appeared, with different strengths, weaknesses, and outlooks than their predecessors. Teaching these students how to litigate has forced me to alter my own approach to teaching legal argument, and has convinced me that a new edition of this book is now necessary. The cohort of students for whom I originally developed this material seemed to need help mainly with the construction of legal arguments. Many of them got stuck right at the starting line, but once they got over the initial hump by jump-starting an argument, they often could take things from there. Today's students still often get stuck at the same initial point, but I also find them getting hung up more than their predecessors at another point in the advocacy process: at the point where it comes time to translate their conceptual arguments into well- written briefs. Consequently, this edition of Legal Argument retains at its core the syllogistic method of argument construction as the basic vehicle of instruction. However, because today's students need more direct instruction in how effectively to present in writing a well-constructed legal argument, the main changes I have made in this edition are directed primarily at providing more information and instruction concerning how to write a good legal argument once it has been constructed. Those who have used the book before will find the first eight chapters virtually unchanged from the first edition, except that Chapter 8 now includes an additional example of how to construct a complete argument, this one drawn from a complex statutory scheme, the Endangered Species Act. The formula for and extended example of briefwriting likewise remain the same, and are now contained in Chapter 10. The new material appearing for the first time in this edition is designed to supplement the account of how to build an argument by providing much more information about how to write an argument. Chapter 9 openly and expressly distinguishes the enterprise of constructing an argument from the enterprise of writing it, a subject that was treated in the first edition mainly through implication, and goes on to offer direct, easily digested advice on how to tell a good story. Chapter 11 contains substantial new advice on how to avoid the most common problems of briefwriting. Chapter 14 also is new, and deals with several advanced techniques of legal writing including how to present the law persuasively, how to frame issues effectively, and what to emphasize (or not) in the course of a written argument. Finally, Chapter 15 deals with maintaining professionalism in advocacy, a topic that anyone who has taught legal writing to law students in the last five or ten years knows requires separate and emphatic presentation. Many people have helped me in ways too numerous to recount with the development of the material in this book, but I owe by far the biggest debt of gratitude to the hundreds of students who over the years have taken my classes in Litigation Practice, Federal Litigation, and Environmental Litigation. They, more than anyone else, taught me how to teach this subject. JAG Buffalo, NY July 17, 2007 Introduction “So you want to be a lawyer? It's easy. Here's a problem. Go out and do the research. Then come up with some arguments. Then write them down in a brief. Have a nice day.” If this is how you experience law school, you are not alone. Many students experience their legal education primarily as a disjointed series of exposures to apparently unconnected bodies of substantive law, threaded together badly, or not at all, by haphazard exposure to some unarticulated common methodology. There is something we do in all those classes that is the same—but what is it? Nobody ever seems to come right out and identify or explain the common enterprise. But just what is it that law students aren't being taught? By the end of the first year most law schools have done a reasonably creditable job of teaching students how to read legal materials and extract from them the relevant rules of law. Most law schools also do a good job of teaching students how to perform research in legal materials; within a few months students usually can navigate online legal sources and do basic research. Law schools also give students at least some early exposure to the practice of legal writing. So what's missing? For students who feel confused by their legal education, the missing part often lies in the middle. These students can read and understand cases and statutes, and they can write up and defend sound legal arguments. The difficulty lies in producing the arguments. I can read and understand the cases, they say to themselves, and I would be delighted to write a brief making the best possible arguments, but what are those arguments? How do I identify them? How do I build an argument that is sound, and persuasive, and well-fortified against attack? Cases and statutes don't yield this information. Once you have assembled them, they just lie there, inertly, on the desk. How, the ambitious law student wants to know, do I make those little suckers stand up and dance? If you are with us so far, then this book is for you. The book has two main purposes. The first is to explain how lawyers construct legal arguments. In this regard, the book is meant to be a purely practical guide to the seemingly mysterious process by which lawyers take the raw materials of litigation—cases, statutes, testimony, documents, common sense—and mold them into instruments of persuasive advocacy. The book's second purpose is to explain how to take a well- constructed legal argument and present it, in writing, in a way that legal decision makers will find persuasive. The book, in other words, is concerned with how to (1) build and (2) present winning legal arguments. We must stress immediately that these are two very different skills. Building an argument is a feat of architecture and craftsmanship. The goal of argument-building is to construct something that is solid and well-made, that sits on stable foundations, that will weather harsh conditions, and which can therefore be used with confidence. Writing arguments, in contrast, is a task of salesmanship; its goal is to persuade a judge to rule for your client. There is no necessary connection between the skills of construction and sales. In most lines of work, designers do not also sell their products: architects build houses and realtors sell them; engineers design cars for sale by dealers. The capable lawyer, in contrast, must master both kinds of skills. There is, however, one important connection between building and writing arguments, between construction and sales: it is easier to sell a well-made product. Someone who has a quality product can sell it simply by showing it, clearly and honestly, to the buyer; the seller has nothing to hide and everything to reveal. When the buyer is knowledgeable—like a judge—a truly fine product sells itself. The seller of an inferior product, in contrast, must conceal poorly constructed features, direct the buyer's attention away from the product's weaknesses, and rely on puffing and other forms of deception to close the deal. Consequently, this book emphasizes heavily the construction of arguments that are not flashy and clever, but merely coherent and solidly grounded—arguments that plod on, point by point, clearly and relentlessly, to the finish line. Such arguments are the true workhorses of legal practice. But what about those flashy arguments—the clever one-liners, the brilliant, discussion-stopping retorts? The truth is that they don't exist. Our combined decades of teaching have convinced us that many students make their way through law school suffering from a fundamental misimpression of what successful legal argument is all about. They seem to believe that winning is simply a matter of finding just the right argument—that out there in the universe of all possible arguments lies the one argument that, if only they can find it, will by its mere utterance, in a single, satisfying blow, utterly devastate the other side and thereby win the case. This, some students seem to believe, is what law professors really know, and what they are hiding from their students. This belief is false, though the impulse to believe is understandable. Wouldn't we all like to know, like Harry Potter, the incantation for a spell that paralyzes our opponents, or to be able, like Mr. Spock on the old Star Trek television show, to pinch people's necks so that they slump instantly into unconsciousness? Once we acquire knowledge of this sort we become unbeatable. Who wouldn't want to be initiated into such mysteries? In the actual practice of law, however, as in most areas of life, disputes are almost never settled by the delivery of a decisive, knockout blow. Legal fights usually go the distance, and are won on points. The winner is the contestant who is fitter, better prepared, and more determined, and who lands the most good blows. That is why this book focuses on craft—the craft of constructing legal arguments that are sound, sturdy, and coherent. Those are the kinds of arguments that persuade judges and win cases. The centerpiece of the book is a step-by-step method, based on the construction of syllogisms, designed to walk the advocate through the process by which such a winning argument may be crafted. Before introducing this method in Part I, however, we need to issue a warning lest the reader misconstrue the book's method as the very kind of magic bullet we have just claimed does not exist. Unlike a spell or secret grip, the book's method does not save the user work, thereby making effective advocacy easier. On the contrary, it creates work, making advocacy harder, though in the end more effective. It does this by forcing advocates to think through issues that they might not otherwise consider, and to do so thoroughly and systematically. In doing this, the method enforces a kind of discipline to which all good advocates inevitably must adhere, though many of them do it intuitively rather than by following a protocol laid out in the pages of a book. So just what issues does this protocol force people to contemplate that they might otherwise overlook? It forces advocates to conduct a kind of research within themselves. It forces them, in other words, to figure out what they think. Law schools invest substantial time and resources in teaching students directly and explicitly how to conduct research in case law, statutes, administrative regulations, and other legal materials. This is research students conduct outside themselves, as it were, to assemble information for use in legal advocacy. But there is another resource in which advocates must do substantial research before they can mount a good legal argument: they must look, carefully and deeply, within themselves to figure out what they think about the legal question under investigation, and, more importantly, why they think it. It is easy enough to blurt out what you think, and every advocate must do so. It is quite another thing, however, to know why you think what you think, and it is the ability to analyze and effectively defend the subterranean infrastructure of one's beliefs that in advocacy distinguishes the good from the mediocre. The students who get most roughed up in a Socratic law school class—and the lawyers who get most roughed up in court—are the ones who know what they think, but not why they think it. These are the people who can always answer the first question, but never the second. The method of argument construction set out in this book is nothing more than a heuristic that forces advocates to do the necessary internal research. Indeed, the entire first seven chapters of this book amount to nothing more than an elaborate exhortation to advocates to keep asking themselves “Why do I think that?,” over and over, until the question eventually becomes pointless and can no longer be answered. If you already know how to do this—to ask yourself “why?” until you reach the absolute end of the line—then you probably don't need to read any further. For those who choose to read on, the book is organized into five parts. Part I sets out a general methodology for constructing legal arguments. This methodology centers on the use of syllogisms and the process of what we call “grounding” their premises. Part II focuses more closely on the construction of persuasive, well-grounded legal premises, and covers the effective integration of legal doctrine and evidence into the argument's structure. Part III shows how to put the method to work by giving two detailed examples of the construction of complete legal arguments from scratch. The book then turns to a very different task: after you have done your research, both external and internal, how do you present it persuasively to a court? Part IV provides a detailed protocol for reducing well-constructed legal arguments to written form, along with a concrete illustration of that process. It also provides specific advice on how to recognize and avoid a host of common mistakes in the written presentation of legal arguments. Part V, the final part, moves from the basics into more advanced techniques of persuasive legal argument. These include rhetorical tactics of framing and emphasis, how to respond to arguments, maintaining professionalism in advocacy, and the ethical limits of argument. A final warning is in order. This book provides a methodology for constructing legal arguments, but no methodology, in this discipline or any other, can ever be more than a reliable rule of thumb. A methodology can provide highly useful guidance to the initiate and the expert alike, but it is never a substitute for practiced judgment based on real experience. The true master of a craft knows when to deviate from the rules as well as when to follow them, when to cut corners and when to proceed more strictly. The advice contained in this book should be taken in this spirit. PART I The Basic Method Chapter 1 The Syllogism Model Synopsis §1.1 Introduction §1.2 Syllogisms §1.3 The Power of Syllogistic Reasoning §1.4 Legal Arguments as Syllogisms §1.5 The Incompleteness of the Analogy Approach §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. §1.2 Syllogisms A syllogism is a statement of logical relationship. The typical syllogism has three parts: 1. The major premise, usually a broad statement of general applicability; 2. The minor premise, usually a narrower statement of particular applicability that is related in some way to the major premise; and 3. The conclusion, which follows logically from the major and minor premises. A classic example of a syllogism is the following, which has been studied by students literally for centuries: 1. All men are mortal. 2. Socrates is a man. 3. Therefore, Socrates is mortal. Two features of this syllogism are important for our purposes. First, notice the form of the premises. The major premise, “All men are mortal,” states a general rule or proposition describing the relationship of men to mortality. The rule is couched so as to apply to all men at all times; by its terms, it admits of no exception. The minor premise, in contrast, is much narrower in focus. The statement “Socrates is a man” is specific and concrete; it does not address broad and abstract principles, but rather a particular person, whom it merely describes. Second, notice the way the conclusion follows logically from the premises. If all men are mortal, and if Socrates is a man, then we do not need to be logicians to figure out that Socrates must be mortal. Intuition alone not only furnishes the conclusion of the syllogism, but does so with a force amounting to compulsion. Below are some other examples of syllogisms: 1. Books printed on paper will eventually decay. 2. This book is printed on paper. 3. Therefore, this book will eventually decay. 1. Two American dollars are equivalent to one British pound. 2. I have two American dollars. 3. Therefore, I have the equivalent of one British pound. 1. No car that breaks down all the time is a good car. 2. Janet's car breaks down all the time. 3. Therefore, Janet's car is not a good car. §1.3 The Power of Syllogistic Reasoning When presented with the properly framed major and minor premises of a syllogism, the human mind seems to produce the conclusion without any additional prompting. Moreover, the mind recognizes the conclusion to be of such compelling force that the conclusion simply cannot be denied. It is impossible to agree that all men are mortal, and that Socrates is a man, and yet to deny that Socrates is mortal; to do so is to speak nonsense. Why is this? What accounts for the power of syllogistic reasoning? Essentially, the syllogism is nothing more than an application in words of the basic mathematical principle of transitivity, a principle familiar to all elementary school students (but frequently forgotten by adults). The principle of transitivity states: if A = B and B = C, then A = C; that is, if two things are equal to the same thing, then they are equal to each other. The terms of a syllogism correspond to the terms of the transitivity principle. To see this, reconsider the Socrates example, assigning the variable A to men, the variable B to mortals, and the variable C to Socrates: 1. All men [A] are mortal [B]. A = B. 2. Socrates [C] is a man [A]. C = A. 3. Thus, Socrates [C] is mortal [B]. C = B. The syllogism, then, says nothing more than that two things (Socrates and mortals) equivalent to the same thing (men) are equivalent to each other.1 Beyond this, of course, there is no further explanation for the power of syllogistic reasoning. The transitivity principle is an axiom; it is something we believe, but cannot exactly prove. Its appeal derives from its reflection of what we take to be a basic fact about the universe we inhabit. We cannot even begin to comprehend what the world would be like if the principle of transitivity did not hold—if A were equal to B, and B were equal to C, but somehow A were not also equal to C. That is why it seems insane to try to deny the conclusion of a properly framed syllogism; to deny the syllogism's conclusion is to deny the world itself as we understand it. For the advocate, the logical and mathematical foundations of the syllogism make it an awesomely powerful tool of persuasion. This is so for one very simple reason: when you present an argument in the form of a syllogism, if your listeners accept your premises, then they MUST accept your conclusion. Once the premises are assented to, the logical force of the syllogism precludes any subsequent denial of the conclusion toward which the syllogism inexorably drives; one who has agreed to the premises is trapped. This does not mean, of course, that one who presents an argument in the form of a syllogism can never be refuted. It does mean, however, that the only way to refute a syllogistic argument is to dispute its premises, not its conclusion; a well-framed syllogism will always be internally consistent and irrefutable on its own terms. Consider the following example: 1. All orbiting bodies are made of green cheese. 2. The moon is an orbiting body. 3. Therefore, the moon is made of green cheese. On its own terms, this syllogism is logical; however, the internal logic and consistency of the syllogism do not make it true. This syllogism is false because the major premise is false, not because of any defect in its structure. Even the most logical applications of false premises inevitably yield conclusions that are also false. Thus, one who wishes to dispute the conclusion of a properly framed syllogism cannot successfully do so by arguing that the conclusion does not flow logically from the premises. The only available strategy is to contest the premises.2 §1.4 Legal Arguments as Syllogisms The power of syllogistic argument leads to the following rule about crafting legal arguments, which is the only such rule of any significance: every good legal argument is cast in the form of a syllogism. When a legal argument is cast as a syllogism, it generally takes the following form. The major premise is a statement of the law; it is, like most major premises, a general proposition of general applicability. The minor premise of a legal syllogism is a proposition concerning the application of the law to the particular circumstances of the case at hand. The conclusion, of course, is derived from the major and minor premises. Here are some examples of legal arguments cast in the form of syllogisms: 1. To be enforceable, a contract must be supported by consideration. 2. The contract between Tim and Mary is not supported by consideration. 3. Therefore, the contract between Tim and Mary is not enforceable. 1. Federal courts have diversity jurisdiction only over claims exceeding $75,000. 2. Sonia's personal injury claim against Alpha Car Rental exceeds $75,000. 3. Therefore, federal courts have diversity jurisdiction over Sonia's personal injury claim against Alpha. 1. The Equal Protection Clause prohibits intentional discrimination on the basis of race. 2. Laws barring blacks from serving on juries constitute intentional discrimination based on race. 3. Therefore, the Equal Protection Clause prohibits laws barring blacks from serving on juries. Notice from these examples how particularly well-suited legal arguments are to the syllogism format. It is often said that a legal argument consists of nothing more than setting out the law and then applying it to the facts of the case. That is precisely what a syllogistic legal argument does. The major premise sets out a proposition of law. The minor premise then applies that legal proposition to the facts and circumstances of a particular conflict. The conclusion flows from the application of law to fact. Many law students will recognize that the syllogism structure is similar to the “IRAC” structure frequently taught during the first year: issue, rule, application, conclusion. Syllogisms are simply another way of thinking about the R, A, and C steps. The major premise is the R or the rule; the minor premise is the A, or the application. The conclusion of a syllogism matches the conclusion of an IRAC construction. The only real distinction between the two models is that IRAC focuses on the order in which the legal argument unfolds, whereas syllogistic reasoning addresses the strength and internal logic of the argument. §1.5 The Incompleteness of the Analogy Approach Common wisdom has it that legal reasoning proceeds by analogy.3 This maxim is true in an important way, but it is nevertheless a very misleading way to look at legal argument, and is probably responsible for many a poorly crafted and confusing argument. Like a syllogism, an analogy is a statement of logical relationship. An analogy compares two things and declares that they are alike: A is like B, C is like D. Analogies can also compare degrees of similarity: A is like B, and A is also like C, but A is more like B than it is like C. The purpose of an analogy in legal reasoning is to help the decision maker assign disparate things to their proper legal categories. For example, consider the sale of a house. The law generally presumes that the sellers do not intend to sell their personal property (or personalty), but that they do intend to sell the fixtures along with the house. Thus, if an article falls within the category of personal property the sellers may remove it, but if the article falls into the fixture category the law presumes that it was sold along with the house. Suppose we know from prior cases that a bathtub is a fixture and a table is personalty. Now consider a wood stove: is it a fixture or personalty? Like a bathtub, a wood stove is large and heavy; but, like a table, a wood stove can be moved without disturbing the structural integrity of the house. Analogical legal reasoning asks whether a wood stove is more like a bathtub than it is like a table. While analogies are thus useful in legal reasoning, they play a more limited role in legal argument. A dead giveaway of the incompleteness of analogies for purposes of legal argument is their inability to answer the question: “so what”? Suppose I tell you: “A wood stove is more like a bathtub than it is like a table.” You say: “All right, but so what”? The analogy itself supplies no answer to this challenge. Of course, the answer is clear enough: the fact that a wood stove is more like a bathtub than it is like a table is legally significant because it means that a wood stove is a fixture that the law presumes is sold along with the house. Notice, however, that the relevant legal argument does not derive from the analogy, but from an implicit syllogism: 1. Fixtures stay with the house. 2. A wood stove is a fixture. 3. Therefore, a wood stove stays with the house. It takes a syllogism to provide the answer to the “so what” challenge. That is, the logical force of an analogy comes from the syllogism to which it contributes, not from the persuasiveness of the analogy itself. Or, put another way, an analogy is a way of defending a premise of a syllogism; by itself, it is not an argument but merely a small piece of an argument. When an advocate loses sight of the limited role of analogies and relies on analogies rather than on the syllogisms of which they are implicit parts, the result is often a lengthy, unfocused series of case descriptions. Such arguments, well known to all teachers of first year law students, generally go something like this: This case is like Allen v. Biggs.4 In Allen v. Biggs, the plaintiff bought a house that contained a large, ornate chandelier in the front entry. Upon taking possession of the house, the plaintiff found the chandelier had been removed, and subsequently sued for its return. The court ruled for the plaintiff, holding that a “large, bulky object” that was “physically connected to the structure” was a fixture. Also analogous is Charles v. Dupree, where the sellers had removed wall-to-wall carpeting throughout the house and the court likewise held that the removed object was a fixture. However, this case is easily distinguished from Edwards v. Fitzpatrick. There, the defendant removed a refrigerator, which the court held to be a fixture. However, the property at issue in Edwards was an apartment, and it is customary for apartment dwellers to leave large appliances behind. This case, in contrast, concerns a free-standing house. These descriptions are often excruciatingly detailed, involving multiple cases, parties and claims. But at the end of it all, the reader usually asks: “so what”? The “so what” challenge can only be answered by reformulating the argument into a syllogism. 1. The rule of Allen v. Biggs and Charles v. Dupree applies in cases concerning large, bulky objects that are physically connected to a structure. 2. This case concerns a large, bulky object (a wood stove) that is physically connected to a structure. 3. Therefore, the rule of Allen v. Biggs and Charles v. Dupree applies in this case. The analogies between the case at hand and the cases cited as precedent serve only the secondary function of supporting the premises of this syllogism. Thus, the analogy is not the argument; the syllogism is the argument. 1. The foregoing explanation is probably as much as (and possibly more than) most students and lawyers will need. Nevertheless, at the risk of belaboring the mathematical bases of syllogistic reasoning, some readers may recognize that this particular syllogism is more accurately viewed as an application of set theory. In other words, the set of men is a subset of the set of mortals (A B); Socrates is a member of the set of men (C A); therefore, Socrates is a member of the set of mortals (C B). 2. It is possible to construct a structurally improper syllogism that is internally inconsistent. This type of error is discussed more fully in §3.3. 3. The leading work is still Edward H. Levi, An Introduction to Legal Reasoning(1949). 4. Most of the “cases” cited in the text as examples are fictional, and thus no full citation has been provided. A few of the cases and almost all of the statutes mentioned are genuine, but full citations have been omitted to avoid cluttering up the text. It should go without saying that lawyers submitting written work to courts should always provide full citations for every case, statute, or other source they mention. Chapter 2 Determining Your Conclusion from Your Position Synopsis §2.1 What Should I Argue? §2.2 The Elements of Presumptive Position §2.3 The Adversary System: A Sorting Mechanism §2.4 Determining Your Presumptive Positions §2.5 Actual Positions §2.6 The Core Position: Relief §2.6.1 Ultimate Relief in the Case §2.6.2 Relief Sought in a Motion §2.7 Converting Positions into Syllogisms §2.8 The Need to Commit to a Position §2.1 What Should I Argue? That a legal argument should be in the form of a syllogism says nothing at all about what the content of that syllogism ought to be. How, then, does the advocate go about formulating syllogisms that will actually persuade a judge to issue a favorable ruling in a real case? An advocate can hardly examine every conceivable combination of premises and conclusions potentially relevant to a particular case to find the best and most persuasive syllogistic argument. Fortunately, the choices available to an advocate are quite constrained, and the number of syllogisms suitable for use in any given case is limited. Unlike a philosopher, a legal advocate does not deal with open- ended questions, nor does the advocate approach a legal problem with an open mind. The need to make a legal argument never arises in a vacuum; it arises only in the context of a specific case, in which specific parties seek specific judicial relief. This feature, intrinsic to any kind of advocacy, gives the advocate a unique advantage over less directed thinkers: the advocate knows the answers to all relevant questions before commencing his or her inquiries. This is so for one simple reason: the advocate always represents the interests of a particular party, and the advocate's goal is to help that party achieve victory in a particular legal dispute. Consequently, from the entire universe of available arguments, the advocate is entitled to contemplate only those few arguments that will help the client win. Indeed, the initial question facing any advocate is never “What should I argue?” but rather “What must I argue in order to win this case?” Fair enough. But how does the advocate know what arguments must be made to win the case, and how should these arguments be converted into syllogistic form? The answer to both these questions is provided by the position. The advocate's position not only determines the content of the legal arguments the advocate must make, but provides the conclusion to every syllogism the advocate may wish to present. This latter feature is especially helpful, for it allows the advocate to construct syllogisms by working backward from a predetermined conclusion rather than haphazardly discovering conclusions by experimenting with potential premises. Isolating the appropriate set of syllogism conclusions is a two-step process. First, the advocate must generate a set of presumptive positions. These positions are the ones with the potential to help the advocate win. Second, the advocate evaluates this set of presumptive positions and from it selects the actual positions to use in the litigation. §2.2 The Elements of a Presumptive Position As an advocate, your presumptive position in any case is a function of two factors: (1) your client's alignment in the case, and (2) any relevant legal principles. The client's alignment is simply his or her party status—basically, plaintiff or defendant.1 The relevant legal principles are simply those rules of law that might conceivably apply to the case. Some examples of legal principles that might be relevant to a case are: negligence, assumption of risk, admissibility of evidence, offer and acceptance, federal question jurisdiction, due process, or separation of powers. At this early stage in the construction of the argument, it is not even necessary to decide whether a particular area of law actually applies to the case, or which way any particular legal question is likely to be resolved. It is enough to know that certain legal principles might be relevant to the case's resolution. §2.3 The Adversary System: A Sorting Mechanism Once you have identified your alignment in the case and some potentially relevant legal principles, you can generate a set of presumptive positions by feeding this data, so to speak, into the sorting mechanism provided by the adversary system. All court cases in our society are conducted according to the adversary system. Under that system, parties with opposing interests come before a court to resolve their dispute. Each party presents its own side of the case as forcefully as possible, and then the judge chooses between them. The theory behind the adversary system is that the court is best able to discern the truth by observing the clash of starkly opposing viewpoints. In any event, an indispensable element of any case in our system is that the parties must always be adverse; if they agree with each other, there is no dispute requiring resolution, and hence no case to be decided. The requirement of party adversity provides the advocate with a fail-safe method for determining precisely which arguments the parties in any case will presumptively wish to make. It all boils down to this: a plaintiff is always for anything that leads to the liability of the defendant, and the defendant is always against anything that leads to liability. It makes no difference what it is that leads to liability; it could be a legal principle, a controlling precedent, a factual finding, or anything else—whatever it is, the plaintiff is always for it, and the defendant is always against it. Note that the parties must make these arguments; they simply have no choice in the matter. If a plaintiff wants to win, it must make only those arguments that lead to imposition of liability on the defendant, and it must oppose any arguments made by the defendant against liability. If the plaintiff fails to make the arguments that lead to the defendant's liability, it will fail to carry its burden of persuasion and will lose. If the plaintiff fails to oppose the defendant's dispositive arguments it will also lose because a court will usually accept the defendant's arguments if they are unopposed. Conversely, the defendant must oppose any argument made by the plaintiff that leads to the defendant's liability. If the defendant fails to do so, the plaintiff's complaint will be unopposed, and the defendant will lose. Likewise, the defendant must advance affirmatively any arguments leading to exoneration. These simple deductions from the nature of the adversary system provide a convenient sorting mechanism that takes a party's alignment and the relevant legal principles and converts them into the party's positions in the case. §2.4 Determining Your Presumptive Positions Suppose your client is the plaintiff in a contract dispute. If you know that much, you already know enough to begin formulating your presumptive positions in the case: you know your client's alignment in the case (plaintiff) and you know the relevant legal principles (contract law). All you need to do is feed this information into the adversary system. We know from the adversary system that the plaintiff, your client, must argue for anything that could lead to the imposition of liability on the defendant. What could lead to contractual liability? The first requirement is certainly the existence of a contract. Thus, your client's presumptive position in the case must be: there was a contract. The plaintiff in a contractual dispute must take this position or lose the case. Conversely, the defendant's presumptive position in the case on this issue must be: there was not a contract. The more you know about the relevant law, the greater the detail with which you can flesh out your presumptive positions. For example, assume that the elements of a valid contract are: offer, acceptance, and consideration. What is the plaintiff's position on each of these elements? Clearly, if you want to win for your client you must argue that (1) there was an offer; (2) the defendant did accept it; and (3) the contract was supported by consideration. If you fail to take these positions, you cannot win the case. The defendant, of course, presumptively must respond that (1) there was no offer; (2) if there was an offer the defendant did not accept it; and (3) the alleged contract was not supported by consideration. Suppose the remedy is an issue because your client wants specific performance. Again, the adversary system determines the presumptive positions of the parties: the plaintiff presumptively must argue that specific performance is an appropriate remedy under the circumstances, and the defendant presumptively must argue that specific performance is not appropriate. We can determine the parties' positions in other types of cases as well. Consider a personal injury case based on negligence. It is possible to go on and on. A plaintiff is always presumptively for the existence of jurisdiction; a defendant, always presumptively against it. A plaintiff is always for the admissibility of its own evidence and presumptively against the admissibility of the defendant's evidence, and vice versa for the defendant. In a constitutional case, a plaintiff is always presumptively for a demanding standard of judicial review, and a defendant is always presumptively against it. Note how mechanical this process is, and how little discretion the advocate actually has. Your client's party alignment is fixed, and so are the requirements of the adversary system. About the only aspect of the process over which the advocate has any control is in deciding what legal principles are relevant to the case. But even then, once any party has concluded that some legal issue is relevant, the parties' positions on that issue are not discretionary: the plaintiff must take the position that leads to liability, and the defendant must take the position that defeats liability. §2.5 Actual Positions Once the set of presumptive positions has been generated, the advocate must select from that set the group of actual positions for use in the case. It is often possible for the advocate to adopt the entire set of presumptive positions for actual use, but sometimes certain presumptive positions must be discarded. The most common defect in a presumptive position that disqualifies it for use in a real case is that it is false. For example, suppose you represent the defendant in a negligence suit. Two elements of tort liability are: the plaintiff must have suffered an injury, and the defendant must have caused the injury. It follows that in order to defend your client, you will presumptively want to take these two positions, among others: (1) the plaintiff was not injured; (2) even if the plaintiff was injured, the defendant did not cause the injury. If you want to make the first of these two arguments, you will have to be able to show that the plaintiff really was not injured—that he or she is a faker and a liar. Now it sometimes happens that plaintiffs fake injuries, or exaggerate the extent of their injuries, in which case you could argue to the court that the plaintiff was not really injured at all. In most cases, however, investigation will reveal that the plaintiff really was injured, and it is simply impossible credibly or ethically to argue otherwise. In these cases, the advocate has no choice but to abandon such a presumptive position as indefensible and concentrate on other, stronger positions, such as the causation issue. Thus, in this example, the defendant would admit that the plaintiff was injured, but would argue (again, if possible) that the plaintiff's injury was not caused by the actions of the defendant. Presumptive positions can also be discarded even if they are not outright falsehoods. Even a true presumptive position may be unsuitable for use in litigation if it is unpersuasive, too complex to explain succinctly to a jury, or too expensive to prove. The important point to keep in mind is that not every position needs to be or even can be defended with a good argument. Much more will be said about the intricacies of argument selection in Chapter 17, which discusses the ethical limits of argument. §2.6 The Core Position: Relief [2.6.1] Ultimate Relief in the Case Lawyers constantly wrangle over the law and the facts, and in complex litigation this wrangling can go on for years. Nevertheless, few lawsuits are really about the law and the facts. Rather, the ultimate subject of almost every lawsuit is relief. Whether the relief requested is money, specific performance, an injunction, or a declaration, in every case the plaintiff claims to be entitled to certain relief and the defendant denies it. All other disputes are mere jockeying for position in the ultimate contest over this most fundamental disagreement. As a result, the advocate absolutely must take a position, in every case, on the plaintiff's entitlement to relief. This position serves as the core of the parties' arguments, the one piece of the case that they can never surrender no matter how many of their legal and factual positions they may eventually be forced to abandon. As with any position, a party's position on relief is driven by the party's alignment. The plaintiff must of course take the position that it is entitled to all the requested relief. The defendant, in contrast, must ordinarily deny that the plaintiff is entitled to any relief whatsoever. If a party is unable to adopt the appropriate position on relief for actual use in the case, then that party has no choice but to settle. Because of its importance, a party's position on the relief should always be the starting point for the party's construction of a legal argument. All other positions are only means of supporting the core position on relief. [2.6.2] Relief Sought in a Motion Not every legal argument concerns the ultimate merits of the lawsuit. Indeed, the majority of legal arguments are addressed to issues that are only intermediate steps on the road to the ultimate relief sought in the case. These issues come up most often in motions— motions to dismiss, motions for summary judgment, motions to compel discovery, motions to exclude evidence, and many others. Although the advocate must formulate and stick to a position on the ultimate relief sought by the plaintiff in every case, whenever a party requests specific relief in a motion, the advocate must formulate a position on that relief as well. Note that the kind of relief requested differs depending on the motion. A motion to dismiss asks for dismissal; a motion in limine asks for the exclusion of evidence; and so forth. Naturally, if your client is the movant, your position must be that your client is entitled to the relief sought in the motion; if the opposing party has moved, your position must be that the relief sought in the motion must be denied. This position will be the centerpiece of your legal arguments for the motion. For example, on a motion to dismiss a complaint seeking monetary damages, a defendant must show the plaintiff has not alleged sufficient, plausible allegations to state a claim for relief. To oppose the motion, a plaintiff must do more than show she is entitled to damages; she must also prove her complaint includes sufficient, plausible allegations to state a claim for monetary relief. The procedural context and its requirements thus dictate the syllogistic argument for both parties. §2.7 Converting Positions into Syllogisms Once you determine your actual position or positions in the case, you can take the first step toward constructing the syllogisms by which you will present your arguments to the court. Specifically, each position should be converted to the conclusion of a syllogistic argument. Consider again a contract case in which the plaintiff seeks enforcement of a contract. The defendant moves for summary judgment; the plaintiff opposes the motion. Starting with the question of relief, we might begin to construct a syllogism as follows: 1. 2. 3. Therefore, the Court should deny the defendant's motion for summary judgment. Because contract law applies to this case, we might also consider a syllogism like the following: 1. 2. 3. Therefore, there was a valid contract. In addition, we might want to consider the following syllogisms based on the more detailed positions we developed in §2.4: 1. 2. 3. Therefore, the plaintiff made a valid offer. 1. 2. 3. Therefore, the defendant accepted plaintiff's offer. 1. 2. 3. Therefore, the contract was supported by consideration. How to flesh out these syllogisms by constructing the premises is the subject of Chapters 3 through 6. §2.8 The Need to Commit to a Position It should be obvious from the preceding discussion that every advocate must commit firmly to a position in every case. The adversary system demands a genuine conflict between the parties, something that is impossible when any party is equivocal about its position. Moreover, effective legal argument itself demands that the advocate take a clearly defined position in order to construct a coherent syllogism. Unfortunately, law students often seem reluctant to commit themselves to a position, even when they are cast as advocates whose positions are fully determined by their clients' interests. Perhaps this is because law students are taught to see all sides of an issue, because they are reluctant to foreclose any legal options, or because they don't fully believe in the positions they must take. Or perhaps this is because students frequently begin their work with legal arguments in balanced legal writing. Sometimes lawyers are called upon to perform balanced analyses and to avoid position-driven posturing in favor of honest evaluations. A memorandum from an associate to a partner in a law firm is probably the most common example of this type of balanced legal writing. The method we set out for constructing legal arguments is just as applicable to balanced legal writing as it is to advocacy. Balanced legal analysis differs from advocacy only in that it requires the construction of arguments on both sides of an issue instead of just one side. To perform a reasoned and informed analysis, a lawyer must be able to understand both parties' positions on an issue, and seeing any side of an issue means nothing more than seeing the arguments that could be advanced in support of that side. The writing of a legal memorandum also need not differ significantly from the writing of a brief. Most lawyers who request a balanced written analysis also want a conclusion, and a good memorandum will present one, however tentatively. In a sense, the memorandum is a piece of advocacy in which the writer supports his or her conclusion. A memorandum may discuss counterarguments more deliberately and extensively than a brief, and it may advance arguments in a less aggressive tone, but a memorandum, like a brief, is still only a series of legal arguments linked together in service of an ultimate conclusion. Nonetheless, whatever the cause, the tendency to waffle about one's position is incompatible with effective advocacy, and must be resisted. If your client is the plaintiff in a contract dispute, there must have been a contract if your client is to prevail. The advocate does not have the luxury of acting as though the existence of a contract is an open question, or that it seems more likely than not; for the advocate, there was a contract, and all arguments leading to that conclusion are correct just as surely as all arguments leading to any other conclusion are wrong. The unpleasant truth is that there is no such thing as risk-free litigation. To win, you must risk losing. This is because only by differentiating your position from that of your opponent can you create the conditions under which the court can rule for you and against your opponent. But taking that step also creates the conditions under which the court can rule for your opponent instead of you. Making legal arguments necessarily involves climbing out on a limb. The trick is to pick the strongest limb—or, if that is impossible, to make your limb look stronger than your opponent's. 1. Technically, a litigant can have other statuses besides plaintiff and defendant; for example, one can be an intervenor, a third-party defendant, or a counterclaimant. However, all parties ultimately end up aligned with the plaintiff or defendant, or can be considered a plaintiff or defendant with respect to some other party. Chapter 3 Building the Premises Synopsis §3.1 Introduction §3.2 The Premises Must Yield the Desired Conclusion §3.3 All Terms Must Match §3.4 The Specification of Any Two Terms Specifies the Third §3.5 The Premises Must Be True §3.6 A Recursive Process §3.7 The Indeterminacy of Law §3.1 Introduction Once you have determined your position in a case and have converted that position into the conclusion of a syllogism, the next step is to construct the rest of the argument by building the premises of the syllogism. How is this accomplished? Although the range of premises available to fill in the syllogism may seem extremely wide, the actual set of choices is significantly constrained by a variety of factors. The most important constraints are: 1. The premises must yield the desired conclusion; 2. All terms of the syllogism must match; 3. The specification of any two terms specifies the third; 4. The premises must be true. Each of these constraints is discussed below. §3.2 The Premises Must Yield the Desired Conclusion The most obvious constraint on the premises, but also the most powerful, is that they must yield the desired conclusion. At this point in the construction of your argument, you have already converted your position into the conclusion of your syllogism. Clearly, you must build a syllogism that yields only the conclusion you have determined to be necessary, and no other. If you construct a syllogism that yields a conclusion that does not support your position, you will lose. §3.3 All Terms Must Match Another feature of syllogistic argument that narrows the universe of potentially useful premises is the requirement that all terms of the syllogism match each other exactly. Recall that the persuasiveness of a syllogism derives from its basis in the transitivity principle: if A = B, and B = C, then A = C. This relationship holds only when A, B, and C consistently represent the same variables. For example, the following syllogism does not work: 1. All men are mortal. 2. Socrates is a dog. 3. Therefore, Socrates is mortal. It is possible that the premises and conclusion of this syllogism are all true. Nevertheless, the syllogism itself is incorrect as a statement of logical relation, and is therefore unpersuasive, because it violates the transitivity principle. To see this, assign the variables A to men, B to mortals, C to Socrates, and D to dog. 1. All men are mortal. [A = B] 2. Socrates is a dog. [C = D] 3. Therefore, Socrates is mortal. [C = B] The syllogism fails the transitivity principle because it leaps from one proposition (A = B) to a completely unrelated one (C = D). The transitivity principle is a demanding taskmaster. It requires that the terms of the premises and conclusion match exactly. Even the slightest deviation among terms is sufficient to rob the syllogism of its persuasive power. Consider the following syllogism, the terms of which match each other more closely than in the previous example: 1. All men are mortal. 2. Socrates appears to be a man. 3. Therefore, Socrates is mortal. This syllogism suffers from exactly the same defect as the previous one: the terms of the major and minor premises do not match exactly, and the syllogism therefore violates the transitivity principle. In order for transitivity to hold, one of the premises must be recast. For example, we could recast the major premise as follows: 1. Things that appear to be men are mortal. 2. Socrates appears to be a man. 3. Therefore, Socrates is mortal. This form maintains the exact identity of variables from the major to the minor premise, and the syllogism now correctly states a logical relationship. The transitivity principle applies equally to legal arguments. Consider the federal procedural rules for splitting off third party claims: 1. Any party may move to sever a third party claim. 2. The defendant is a party. 3. Therefore, the defendant may move to sever a third party claim. Once again, the terms match. The minor premise does not focus on who brought the third party claim or raise other procedural options such as moving to dismiss or strike. Similarly, the conclusion repeats the “may” language. Stating the defendant “must” move to sever, for example, would violate the transitivity principle. It is especially easy to violate the transitivity principle in legal argument because legal terms and propositions are often vague. Suppose you are challenging a law on equal protection grounds as racially discriminatory. You find in your research that the Constitution permits the government to pass a law that classifies people according to race only if the law serves a “compelling government interest.” Consider the following syllogism: 1. A law that classifies people by race is constitutional only if it serves a compelling government interest. 2. This law classifying people by race does not serve any important government interest. 3. Therefore, this law is unconstitutional. This syllogism violates the transitivity principle: the major premise refers to “compelling” government interests, but the minor premise refers to “important” government interests. Because the transitivity principle demands complete identity between terms, the minor premise should be: 2. This law does not serve a compelling government interest. Now, you may be skeptical about the legal difference between a government interest that is “important” and one that is “compelling.” You may feel that both terms are so vague that there can be no meaningful distinction between them, and that they therefore may be used interchangeably. Resist this feeling; it is an inadequate justification for departing from the strict requirements of transitivity. If there is a legal difference between “important” and “compelling” then your syllogism will be unpersuasive because it will prove nothing. If there is no legal difference between the two terms, you will still have to explain that fact to the court to justify your indiscriminate use of two different terms. But this will needlessly complicate your argument, and any needless complication should be avoided. Consequently, the strict requirements of transitivity should always be scrupulously observed. §3.4 The Specification of Any Two Terms Specifies the Third The internal logic of syllogisms also constrains the selection of premises in another way. Because syllogisms rely on the transitivity principle, specifying any two terms of the syllogism automatically specifies the third term. We already know that the conclusion follows automatically from the major and minor premises. But we can also deduce the minor premise if we know the major premise and the conclusion, and we can deduce the major premise if we know the minor premise and the conclusion. That is, if we know one premise (A = B) and the conclusion (A = C), then we can specify the other premise (B = C). For example, suppose we know from analyzing our position that our conclusion must be: “Therefore, the court has diversity jurisdiction over plaintiff's claim.” Suppose further that we know our major premise is: “A federal court has diversity jurisdiction only over claims exceeding $75,000.” This gives us three variables: (A) a federal court's diversity jurisdiction, (B) claims exceeding $75,000, and (C) plaintiff's claim. Here is what we have so far: 1. A federal court has diversity [A = B] jurisdiction only over claims exceeding $75,000. 2. 3. Therefore, a federal court has [A = C] diversity jurisdiction over plaintiff's claim. It is clear that this syllogism will be complete only if the minor premise establishes the equivalence of plaintiff's claim and claims exceeding $75,000—that is, the minor premise must establish that B = C (or C = B, which is the same thing). Therefore, the minor premise must be: 2. Plaintiff's claim exceeds $75,000. [C = B] Note that we can deduce what the minor premise must be without actually knowing if the premise is true. The same process can be used to determine the major premise if the conclusion and minor premise are known. Suppose we have: 1. 2. Plaintiff's claim exceeds $75,000. 3. Therefore, a federal court has diversity jurisdiction over plaintiff's claim. From this we can deduce that the major premise must be: 1. A federal court has diversity jurisdiction over claims exceeding $75,000. §3.5 The Premises Must Be True The final constraint on the selection of premises for a syllogism is the simplest: is the premise true? Unlike the other constraints we have examined, this one arises not from the internal logic of the syllogism itself, but from external circumstances—namely, the fact that the syllogism will be used to mount an argument intended to persuade another person. There will almost always be more than one set of premises that yields any desired conclusion, and often there will be many. For example, suppose we know that the conclusion to our syllogism is: “Therefore, Socrates is mortal.” We know at least one set of premises that yields this conclusion: 1. All men are mortal. 2. Socrates is a man. 3. Therefore, Socrates is mortal. But this is hardly the only set of premises that yields the desired conclusion. Here are two others that will do as well. 1. All parrots are mortal. 2. Socrates is a parrot. 3. Therefore, Socrates is mortal. 1. Someone who can never die is mortal. 2. Socrates can never die. 3. Therefore, Socrates is mortal. Both of these syllogisms are internally consistent, and both yield the required conclusion. That does not mean, however, that we must accept and use them in an argument. We may reject the first syllogism because its minor premise is false: Socrates is a man, not a parrot. Similarly, the major premise of the second syllogism defines “mortal” incorrectly. Thus, constraints on the acceptability of premises arise not from the internal logic of the syllogism itself, but from what we know to be true about the subject matter of the syllogism. That is, premises must be judged not only by whether they yield the desired conclusion, but also by their accuracy. §3.6 A Recursive Process Unfortunately, there is no strictly mechanical way to generate the premises of a syllogism to which the conclusion is known. As a result, the process of filling in the premises of a syllogistic argument is necessarily a recursive, or trial-and-error process. That is, we choose one premise as a provisional starting point. Since our conclusion is known in advance, the choice of one premise necessarily determines the other. We then evaluate that premise. Is it true? Does it lead logically to the proper conclusion? If not then we must adjust it. But any adjustment to the second premise requires a corresponding adjustment to the first. We make that adjustment and then evaluate the reformed first premise. If necessary, we readjust it, continuing in a like manner until we have a syllogism with two satisfactory premises that yield precisely the desired conclusion. Here is an example of the type of recursive reasoning process used to determine the premises of a syllogistic legal argument. Suppose our client is a doctor who is a member of a medical practice group. She comes to us with the following problem. She is no longer happy in her group practice, and wishes to leave the group to establish her own practice. However, her contract with the group contains a “no- compete” clause. The clause says that if she leaves the group, she agrees not to establish her own practice within a ten-mile radius of the group's location for a period of five years. She now finds this restriction unacceptable. The ten-mile limit would push her entirely out of the city in which she has lived and worked all her career and where the majority of her potential clients are, and she cannot wait five years to establish a practice within the city. She wants to know if there is any way she can get out of complying with the no-compete clause. After some preliminary research, we find that in our jurisdiction the courts consider a no-compete clause enforceable only if it is “reasonable.” If it is “unreasonable,” the courts will not enforce it. Since we know from our alignment in this conflict that we want the courts not to enforce the clause, it follows that our position must be: this no-compete limitation is unreasonable. Converting this position to a syllogism, we have so far: 1. 2. 3. Therefore, this no-compete limitation is unreasonable. Suppose we now look more closely at the case law. We find that the leading decision in our jurisdiction involved an accountant who violated a clause setting a noncompetition radius of twelve miles. The court held that this restriction was unreasonable. Let us say provisionally that this case allows us to formulate the following proposition of law: a no-compete limitation of twelve miles or more is unreasonable. Suppose we try this out as our major premise: 1. A no-compete limitation of twelve miles or more is unreasonable. 2. 3. Therefore, this no-compete limitation is unreasonable. Since we now have one premise and the conclusion, we can mechanically fill in the other premise. For the syllogism to stand as a logical statement, it must now read: 1. A no-compete limitation of twelve miles or more is unreasonable. 2. This no-compete limitation is twelve miles or more. 3. Therefore, this no-compete limitation is unreasonable. This syllogism states a winning legal argument. Unfortunately, though, we can't use this syllogism; the minor premise is false. The no- compete clause here specifies a limit of ten miles, not twelve. We need to win in this case, not some other case with different facts. Let's substitute the minor premise we know to be true: 1. A no-compete limitation of twelve miles or more is unreasonable. 2. This no-compete limitation is ten miles or more. 3. Therefore, this no-compete limitation is unreasonable. But now we have a different problem: the terms of the syllogism no longer match and it proves nothing. To reconstruct the syllogism to state a logical relationship, we must revise our provisional major premise: 1. A no-compete limitation of ten miles or more is unreasonable. 2. This no-compete limitation is ten miles or more. 3. Therefore, this no-compete limitation is unreasonable. Once again we have a winning, properly formed syllogism. Better yet, the minor premise is true. The only question now is whether the major premise is also true. Is it a correct statement of law? We know this much: it had better be a correct statement of law, or we need to go back to the drawing board. It would be best, of course, to find a case that said exactly what we want the major premise of our syllogism to say. Here, though, the case law appears to provide no definitive answer. That's not so bad; perhaps we can come up with some plausible argument in support of the major premise. For example, we might be able to argue that a twelve-mile limit for accountants is equivalent to a ten-mile limit for doctors because the services of accountants are less in demand than those of doctors. If, on the other hand, further research and reflection convinces us that there is no good argument in support of the major premise, we may have to substitute a different major premise, requiring a further revision of the minor premise. For example, if the distance aspect of the limitation proves unhelpful, we might try focusing on the duration of the restriction, or on the specific combination of distance and duration. Thus, instead of framing the legal principle as “ten-mile limitations are unreasonable,” we might substitute “five-year restrictions are unreasonable,” or “ten-mile, five-year restrictions are unreasonable.” Whatever the outcome, this type of back and forth movement from premise to premise within a framework provided by a fixed conclusion is the essence of the recursive process of premise determination. §3.7 The Indeterminacy of Law The analysis of the previous section may prove surprising to some. We saw there that both premises of a syllogism may need to be tinkered with and adjusted to yield the desired conclusion. But we said earlier that the major premise of a legal syllogism states a proposition of law. How can a legal proposition be “adjusted” to yield a specified result? The law is externally fixed by courts and legislatures, so doesn't it follow that a statement of the law is either correct or not? And if so, how can a legal premise be subjected to tinkering by advocates without also making it false? The truth, perhaps unfortunately, is that there is far more play in the joints of the law than the fiction of legal determinacy would have us believe. In order to be useful for a wide variety of situations a legal rule must be abstract and general to some degree. This generality inevitably gives rise to some amount of uncertainty in the rule's meaning and application. It is the lawyer's job to exploit any uncertainty by attempting to “fill in” a gray area of the law in a way favorable to the client. Of course, it is hardly true that any argument at all will be acceptable; the general contours of the law usually set some limits on the types of arguments that can be considered contextually plausible. (Some of these limits are discussed further in Chapter 17.) But the bottom line is that an advocate's view of the law is dictated in the first instance by the client's position, and only secondarily by the actual, discernible contours of the doctrinal landscape. This feature of legal practice has greatly contributed to the public impression that lawyers are amoral “hired guns” who will say whatever it takes to win for their clients. But this same feature of legal practice also makes legal advocacy a creative and challenging enterprise. Chapter 4 Grounding the Premises Synopsis §4.1 The Requirement of Grounding §4.2 Directly Grounded Premises §4.3 Indirect Grounding through Nested Syllogisms §4.4 Multiple Grounding §4.5 Grounding in Controversial First Principles §4.1 The Requirement of Grounding Each syllogism is its own little world; it is an internally coherent view of a certain limited universe. But a syllogism's internal consistency provides no guarantee that any particular person will accept its argument; one can admit a syllogism's logic and still reject its conclusion because one rejects its premises. A critical task for any advocate, then, is to induce his or her target audience to accept the premises of a syllogistic argument. What induces someone to accept the premise of a syllogism? At a minimum, the targets of persuasion must believe the premise of a syllogism to be true before they will accept it as the basis for a persuasive argument. That is why, as we saw in Chapter 3, the advocate must offer only premises that are true. But is the truth of a syllogism enough to persuade an audience to accept it? Consider the following syllogism: 1. Airfoils generate lift according to Bernoulli's Principle. 2. A fixed aircraft wing is an airfoil. 3. Therefore, a fixed aircraft wing generates lift according to Bernoulli's Principle. This syllogism states a fundamentally true explanation of why an airplane flies. It is properly structured and internally coherent. But does it persuade you? Probably not, unless you happen to know something about fluid mechanics. The premise of a syllogism, then, must be something more than merely true; it must be grounded. To say that a premise is grounded means that the premise is not only true, but self-evidently true; it requires no further explanation or justification from the advocate. A grounded premise is one that the target audience will accept as true without further elaboration. Now reconsider the foregoing syllogism explaining why airplanes fly. For most people, the syllogism is not persuasive, despite its truth, because they lack sufficient information to understand the truth of the syllogism. Most of us need to know the meaning of the terms “airfoil,” “Bernoulli's Principle,” and “fixed aircraft wing.” We need to know why airfoils work according to Bernoulli's Principle, and why a fixed aircraft wing should be considered an airfoil. Only when we have this information do we have a realistic opportunity to make a judgment about the truth of the premises of this syllogism. Does this mean that the syllogism is ungrounded? Not necessarily. The syllogism might be sufficiently grounded for presentation at an aeronautical engineering convention; that is, engineers might accept the premises as true without requiring further explanation or justification. But the premises are certainly not sufficiently grounded to present to a jury in a tort suit arising out of a plane crash: a panel of lay persons will require far more explanation than the premises of the syllogism provide. Proper grounding, then, is a matter of context. The proponent of a syllogism must provide sufficient explanation of its premises to allow the particular target audience to understand why the premises are true. §4.2 Directly Grounded Premises There are two types of grounded premises. A directly grounded premise is one that is itself properly grounded; the premise states a true proposition that either cannot or need not be further explained. An indirectly grounded premise, in contrast, is one that is shown to be true only by linking it to some other premise, which is itself directly or indirectly grounded. When is a premise directly grounded? Some premises may be incapable of further explanation in virtually any circumstances. For example, it is hard to imagine how one could further ground the proposition “apples are red.” Redness is a quality by which we define apples, and it seems impossible to “explain” the word “red.” Or consider the statement “all men are mortal.” We could probably ground this statement further by explaining the concepts of “man” and “mortality,” and we might do so for a young child. But when we are addressing adults, these additional explanations are unnecessary, so the proposition is directly grounded for most purposes. The premise “the Chief Justice is the head of the judicial branch” is directly grounded for purposes of making an argument in a legal context because every judge and lawyer knows it to be true (or had better know it!). However, the same premise might be ungrounded when directed to an elementary school class, or to a foreigner who lacks a working understanding of the structure of the United States government. Other examples of premises that would be considered directly grounded in many circumstances might include: George Washington was the first President of the United States. The sun never shines at night. France is a European country. Driving without wearing a seatbelt is dangerous. People should eat healthful and nutritious meals. §4.3 Indirect Grounding through Nested Syllogisms Advocacy would be much simpler if all premises were directly grounded —if the judge could look at the advocate's premises and understand them to be true at a glance. Unfortunately, it is often the case that advocates must construct syllogistic arguments using premises that are not self-evidently true, and which require further explanation to gain acceptance. All premises must be grounded. But if a premise is not directly grounded how can its truth be demonstrated? Such premises must be grounded indirectly. Indirect grounding involves taking an ungrounded premise and linking it indirectly, through other syllogisms, to a directly grounded premise. Indirect grounding is a four-step process: 1. Identify the ungrounded premise. 2. Convert the ungrounded premise to the conclusion of a new syllogism. 3. Construct new premises for the new syllogism leading to the required conclusion. 4. Evaluate the new premises to see if they are directly grounded. If they are directly grounded, stop. If not, repeat the process until all premises are directly grounded. This procedure of indirect grounding results in a set of “nested” syllogisms that link the ultimate syllogism indirectly to a set of premises that are directly grounded and thus require no further justification. Here is an example of indirect grounding. Suppose you wish to persuade your local town council to install a traffic light at a dangerous intersection near your house, and you present the following argument: 1. Traffic lights should be installed at dangerous intersections. 2. The intersection of North Street and Main Street is dangerous. 3. Therefore, a traffic light should be installed at the intersection of North and Main. Now suppose that you judge the major premise to be adequately grounded as far as the town council is concerned; you think the council members will accept the major premise as self-evidently true. The minor premise, however, may present problems. Let's assume that it is not directly grounded. To ground the minor premise indirectly according to the method set out above, you must first convert the premise into the conclusion of a new syllogism: 1. 2. 3. Therefore, the intersection of North Street and Main Street is dangerous. The next step is to fill in the premises of this new syllogism. Note that performing this step forces you to analyze your own implicit assumptions and premises. Why do you think that this intersection is a dangerous one? Let's assume that you think the intersection is dangerous because there have been many accidents there—say, one a month. That information might give us the following syllogism: 1. An intersection is dangerous if it is the site of one or more accidents per month. 2. The intersection of North and Main is the site of at least one accident per month. 3. Therefore, the intersection of North and Main is dangerous. The final step is to see if the premises of the new syllogism are directly grounded. Are they? As we have seen, the answer to this question depends on the context. Perhaps most town councils would accept the major premise of this syllogism without further argument. If you think your council would, you may consider the major premise directly grounded. On the other hand, it is possible to imagine a town council requiring further explanation for the major premise. For example, the council might respond: “Dangerous compared to what? Maybe an accident rate of one per month makes the intersection a relatively safe one compared to other intersections in the town.” If you really wanted to be sure of making your case persuasively, you might decide to further ground the major premise of the new syllogism. You would again need to examine your own assumptions and premises: why do you think that an accident rate of one per month makes an intersection dangerous? Perhaps you might come up with a new syllogism along the following lines: 1. An intersection is dangerous if its monthly accident rate exceeds the average monthly accident rate for all intersections in the town. 2. The average monthly accident rate for all intersections in the town is just under one accident per month. 3. Therefore, an intersection is dangerous if it is the site of one or more accidents per month. As before, you would then need to ask yourself whether each of these premises is adequately grounded, and so on. Eventually, though, you will come to a point beyond which further explanation is impossible or unnecessary. When such a point is reached, your original syllogism is indirectly grounded. The following diagram summarizes the indirect grounding process set out above. §4.4 Multiple Grounding In the traffic light example given above, the ungrounded premise was grounded through a single series of nested syllogisms. This set of nested syllogisms defined a straight-line path from the premise to its ground. It is often the case, however, that an ungrounded premise can be supported in more than one way, and that it can therefore be grounded at more than one point. For example, suppose the intersection of North and Main discussed above is dangerous not only because there is an accident there every month, but because children cross the intersection on their way to school. This could lead to an entirely different set of nested syllogisms grounded in an entirely different premise. Here is one possibility: 1. An intersection is dangerous if children routinely use it on their way to school. 2. Children routinely use the intersection of North and Main on their way to school. 3. Therefore, the intersection of North and Main is dangerous. Again, the premises of this syllogism may need further grounding. If so, the process would continue until an appropriate grounding point is reached. Multiple grounding strengthens an argument by increasing the chances that an ungrounded premise will be accepted by the decision maker. If, for some reason, a court rejects one route to ground as unpersuasive, the advocate has not necessarily lost the argument; the court might still accept a different route. This does not mean, of course, that an advocate should bury a court in as many multiple groundings as he or she can conceive for each and every premise. Not every grounding will be equally persuasive, and where some possible groundings are stronger than others the advocate should use only the stronger ones. Excessive grounding should also be avoided if it will only lead to confusion. Finally, excessive grounding risks weakening the overall presentation by conveying the impression that the advocate has attempted to pile on as many arguments as possible because he or she lacks faith in their persuasive power individually. §4.5 Grounding in Controversial First Principles Most premises can be grounded in uncontroversial propositions or in verifiable assertions of fact. Some premises, however, can only be grounded in propositions that are sufficiently controversial to make their acceptance problematic for people who do not already agree with them. Consider the example of euthanasia. Those who oppose euthanasia frequently argue that euthanasia is murder. Suppose they rely on an argument like this: 1. The wrongful taking of human life is murder. 2. Euthanasia is a wrongful taking of human life. 3. Therefore, euthanasia is murder. If this argument is intended to persuade a supporter of euthanasia, it obviously must be further grounded. The weak spot is probably the minor premise: most supporters of euthanasia would not be willing to accept the proposition that euthanasia involves the “wrongful” taking of human life. The difficulty here is in figuring out how to further ground the proposition that euthanasia is wrongful. Most attempts at grounding this proposition seem to lead to premises that would be no more acceptable to supporters of euthanasia than the proposition to be grounded. To give just one example, some opponents of euthanasia argue that life, even when it is painful or hopeless, is preferable to death. Suppose their argument implicitly goes something like this: 1. To make someone worse off is wrong. 2. Euthanasia makes a person worse off. 3. Therefore, euthanasia is wrong. But it is doubtful that this syllogism would provide any better grounding as far as supporters of euthanasia are concerned. Most euthanasia advocates would probably dispute the proposition that death can never make a terminally ill patient better off. It might be possible to go further; one could assert, for instance, that the aches and pains of life are nothing compared to the horrors of death—but it is far from clear how that proposition could be further grounded. Either you believe it or you don't, or so it seems. By now we have arrived at or very near a point at which further explanation or justification for a premise is impossible. This is the aim of the grounding process. Yet despite having properly grounded the premise, we still have not arrived at a bedrock proposition that must be accepted. Unfortunately, there is no way out of this difficulty. Just because a premise cannot be further explained or justified does not mean that everyone must automatically accept it. Every system of thought contains certain first principles, or axioms,

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