Legal Argument

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Legal ArgumentThe Structure and Language of Effective Advocacy

third edition

James A. Gardner

Christine P. Bartholomew

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Copyright © 2020James A. Gardner and Christine P. BartholomewAll 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,[2020]

Identifiers: LCCN 2020009514 | ISBN 9781531017279 (paperback) | ISBN9781531017286 (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 Press700 Kent StreetDurham, North Carolina 27701Telephone (919) 489-7486Fax (919) 493-5668www.cap-press.com

Printed in the United States of America

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Table of Contents

Online Materials xiiiPreface to the Third Edition xvPreface to the Second Edition xviiIntroduction xix

part iThe Basic Method

Chapter 1 · The Syllogism Model 3Synopsis 3§ 1.1 Introduction 3§ 1.2 Syllogisms 4§ 1.3 The Power of Syllogistic Reasoning 5§ 1.4 Legal Arguments as Syllogisms 7§ 1.5 The Incompleteness of the Analogy Approach 8

Chapter 2 · Determining Your Conclusion from Your Position 11Synopsis 11§ 2.1 What Should I Argue? 11§ 2.2 The Elements of a Presumptive Position 12§ 2.3 The Adversary System: A Sorting Mechanism 13§ 2.4 Determining Your Presumptive Positions 14§ 2.5 Actual Positions 16§ 2.6 The Core Position: Relief 17

[2.6.1] Ultimate Relief in the Case 17[2.6.2] Relief Sought in a Motion 17

§ 2.7 Converting Positions into Syllogisms 18§ 2.8 The Need to Commit to a Position 19

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Chapter 3 · Building the Premises 21Synopsis 21§ 3.1 Introduction 21§ 3.2 The Premises Must Yield the Desired Conclusion 22§ 3.3 All Terms Must Match 22§ 3.4 The Specification of Any Two Terms Specifies the Third 24§ 3.5 The Premises Must Be True 25§ 3.6 A Recursive Process 26§ 3.7 The Indeterminacy of Law 29

Chapter 4 · Grounding the Premises 31Synopsis 31§ 4.1 The Requirement of Grounding 31§ 4.2 Directly Grounded Premises 32§ 4.3 Indirect Grounding through Nested Syllogisms 33§ 4.4 Multiple Grounding 37§ 4.5 Grounding in Controversial First Principles 38

part iiElements of Persuasive Legal Argument

Chapter 5 · Read to Build 43Synopsis 43§ 5.1 Introduction 43§ 5.2 Instrumental Reading 44§ 5.3 Active Reading 47

[5.3.1] Attend to Context 47[5.3.2] Keep First Impressions Provisional 49[5.3.3] Self-Challenge 50

§ 5.4 The Ultimate Skill: Active Instrumental Reading 50

Chapter 6 · The Major Premise 53Synopsis 53§ 6.1 Introduction 53§ 6.2 The Basic Strategy 54§ 6.3 Establishing Certainty of Authoritativeness 55

[6.3.1] Sources of Authority 55[A] Binding Authority 55

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[B] Hierarchies of Binding Authority 55[C] Non-Binding Authority 56

[6.3.2] Direct Grounding in Targeted Authority 56[A] Quote Statutes or Cite Their Interpretations 57[B] Cite Case Authority 58[C] Use Multiple Sources of Authority 59

[6.3.3] Indirect Grounding of the Major Premise 61§ 6.4 Establishing Certainty in Content 63

[6.4.1] Using Tests 64[6.4.2] Using Step Analysis 66[6.4.3] Using Factor Analysis 66

[A] Multifactor Analysis 66[B] Spectrum Tests 67[C] Balancing Tests 68

§ 6.5 A Factor Analysis Can Always Be Extracted 70

Chapter 7 · The Minor Premise 73Synopsis 73§ 7.1 Introduction 73§ 7.2 Establishing Certainty of Authoritativeness 74

[7.2.1] Ground Factual Assertions in Evidence 74[7.2.2] Types of Evidence 76[7.2.3] Appeals to Common Sense 77

§ 7.3 Establish Certainty of Content by Using Brute Facts 78[7.3.1] Brute Facts and Compound Facts 78[7.3.2] Break Down Compound Facts into Brute Facts 79

§ 7.4 Elaborate Key Legal Terms 81[7.4.1] Legal Aspects of the Minor Premise 81[7.4.2] Identify the Key Terms 81[7.4.3] Tell the Judge: “Here’s How You Know It When You

See It” 82§ 7.5 A Warning: Conclusory Arguments 85

[7.5.1] The Problem of Conclusory Arguments 85[7.5.2] How to Cure Conclusory Argument: The “Why? Why?

Why?” Test 86§ 7.6 A Grounded Minor Premise Guides Factual Development 87

Chapter 8 · Summary of the Method 89

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part iiiPutting It All Together

Chapter 9 · Building a Complete Argument 95Synopsis 95§ 9.1 Introduction: What Do I Think, and Why? 95§ 9.2 Example 1: Opposing a Rule 15(a) Motion 96

[9.2.1] The Problem 96[9.2.2] The Facts 96[9.2.3] The Law 97[9.2.4] The Argument 99

§ 9.3 Example 2: Endangered Species Act Violation 104[9.3.1] The Problem 104[9.3.2] The Facts 104[9.3.3] The Law 105[9.3.4] The Argument 107

§ 9.4 Troubleshooting 112

part ivWriting a Legal Argument

Chapter 10 · Writing a Legal Argument 117Synopsis 117§ 10.1 A Formula for Writing Arguments 118§ 10.2 Elements of the Formula 119

[10.2.1] The Set-Up 119[A] Identification of the Target 119[B] State the Conclusion 120

[10.2.2] Setting Out the Law 121[A] Identify and Introduce the Relevant Doctrine or Provision 121[B] Explicate the Law 121[C] Set Out the Controlling Test, Step Analysis or Factor

Analysis 122[10.2.3] Apply the Law to the Facts 123[10.2.4] Bolster with Analogous Precedent 125

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§ 10.3 Clarity Always Takes Precedence 128§ 10.4 An Example of Reducing an Argument to Writing 128

[10.4.1] The Outline 128[10.4.2] The Brief 129

Chapter 11 · Don’t Forget the Story 133Synopsis 133§ 11.1 Writing an Argument: A New Enterprise 133§ 11.2 Tell a Good Story 135

[11.2.1] Begin at the Beginning 135[11.2.2] Introduce Things before Discussing Them 136[11.2.3] Give the Basic Facts 136[11.2.4] Use Detail to Paint a Vivid Picture 138[11.2.5] Better to Say Too Much than Too Little 138[11.2.6] When Clarity Is Persuasion 139

Chapter 12 · Common Problems of Written Legal Advocacy and How to Avoid Them 141

Synopsis 141§ 12.1 Problems of Storytelling 142

[12.1.1] Stress What Is, Not How We Know 142[12.1.2] Poor Quoting Practices 144[12.1.3] Give a Roadmap in the Introduction 146[12.1.4] Explain Changes of Subject or Focus 147

§ 12.2 Lack of Structure (“String of Beads”) 148§ 12.3 Conclusory Argument 150

[12.3.1] What Is Conclusory Argument? 151[12.3.2] Where Can an Argument Be Conclusory? 152[12.3.3] Recognizing Conclusory Arguments in Context: The

Problem of “Heft” 153[12.3.4] The Basic Fix: Take Your Time 154[12.3.5] An Example of Unpacking a Conclusory Argument 156[12.3.6] Avoid Overcompression 158[12.3.7] Don’t Rush Analogies 158[12.3.8] You Have Enough Pages 159

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part vAdvanced Techniques of Persuasive Legal Argument

Chapter 13 · Special Problems of Legal Advocacy 163Synopsis 163§ 13.1 The Big Case 163§ 13.2 No Controlling Authority 165

[13.2.1] The Nature of the Problem 165[13.2.2] Grounding the Argument in First Principles 166[13.2.3] Justice, Morality, and Policy 167

Chapter 14 · Responding to Arguments 169Synopsis 169§ 14.1 Affirmative and Responsive Arguments 169§ 14.2 Treat Your Opponent’s Arguments Respectfully 171§ 14.3 Three Ways to Respond 172

[14.3.1] Denial 172[14.3.2] Shifting Ground: Confession and Avoidance 174[14.3.3] Ignoring Arguments 175

§ 14.4 Avoid Passivity 176[14.4.1] Failure to Take Charge 176[14.4.2] Reluctance to Accuse 178[14.4.3] Passive Language 178

§ 14.5 Organizing Responses 179

Chapter 15 · Common Tactics and Rhetorical Techniques of Effective Written Advocacy 181

Synopsis 181§ 15.1 Presenting the Law 182

[15.1.1] Backing Up Legal Contentions 182[A] Pile It On 183[B] Show Stability through Recency and Consistency 186[C] Universal Consensus 187

[15.1.2] Calling Attention to the Legal Standard 188[15.1.3] Exceptions to Controlling Rules 189[15.1.4] Providing the Court with an Escape Route 191

§ 15.2 Ways of Talking and Framing 192[15.2.1] Use a “Hook” 192[15.2.2] Get There First 193

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[15.2.3] Don’t Ask Questions, Give Answers 194[15.2.4] The “Shared Struggle” 194[15.2.5] Use the Language of Fallback Arguments 195[15.2.6] Stretch or Contract the Facts to Suit Your Purpose 196[15.2.7] Build Up to Tear Down 198

§ 15.3 What to Emphasize 200[15.3.1] Allocate Space Proportional to Importance 200[15.3.2] Don’t Write a Treatise 201[15.3.3] Don’t Make an Argument So Brief It Seems Like an

Afterthought 202[15.3.4] Don’t Make the Other Side’s Case 202[15.3.5] Stress I Win, Not You Lose 203[15.3.6] Don’t Stress Anticipatory Rebuttals 204[15.3.7] Don’t Concede, Just Move On 205

Chapter 16 · Professionalism in Advocacy 207Synopsis 207§ 16.1 Maintain Your Own Credibility 208

[16.1.1] Show You’re Not Making It Up 208[16.1.2] Be Accurate: Check Your Work 209[16.1.3] Deliver What You Promise 210[16.1.4] Maintain Stamina throughout the Brief 210

§ 16.2 Be Fair and Generous toward the Opponent 211§ 16.3 Never Attack a Court or a Judge 212§ 16.4 The Author Does All the Work (Not the Court) 213

Chapter 17 · The Ethical Limits of Argument 215Synopsis 215§ 17.1 The Ethical Dilemma 215§ 17.2 Official Constraints 216§ 17.3 Good Faith 217

[17.3.1] Bad Faith: It’s False 217[17.3.2] Bad Faith: No One Could Believe It 217[17.3.3] Good Faith: Winners and Losers 218[17.3.4] Maintaining Your Sense of Good Faith 219

§ 17.4 The Settlement Option 220

Index 221

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Online Materials

Additional content for Legal Argument: The Structure and Language of EffectiveAdvocacy (Third Edition) is available on Carolina Academic Press’s CoreKnowledge for Lawyers (CKL) website.

Core Knowledge for Lawyers is an online teaching and testing platform thathosts 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 & In-structors” link.

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Preface to the Third Edition

In the twenty-seven years since Legal Argument’s initial release, legal edu-cation has changed— as have the students we educate. Few professors stilladhere to the traditional format of the law school class, with its purely Socraticlectures and single exam at the term’s end. Instead, law schools are integratingmore experiential, skills-based teaching. Incremental assessments, recursivelearning, and opportunities for feedback are increasingly the hallmarks of awell-designed law class. Partly, this change in legal education stems from a dif-fering student population. Few of today’s first year law students come armedwith 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 editionremains true to its initial design: it still is intentionally short and focusedsquarely on argument construction. It retains the five-part structure from thesecond edition, which starts by introducing syllogistic reasoning and thenbuilds on that core structure to address principles of argument developmentand advanced persuasive writing.

The revisions flesh out this structure. We added a chapter on critical readingskills, to provide students a solid starting point for building legal arguments.We expanded the examples and explanations throughout to aid students inmaking the connections necessary to construct complex legal arguments.

Perhaps most helpful, though, are the new supplements to the book. Thethird edition is now accompanied by an interactive online platform. This plat-form includes numerous exercise sets. Each set corresponds with a particularchapter. The exercises are self-paced and allow students to self-assess their skilldevelopment. This edition also includes a teacher’s memo with additional ex-ercises, PowerPoint slides, and supplemental materials. These materials offermore fodder for hands-on experience with argument development.

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Finally, with the third edition comes a new co-author. We have spent count-less hours over the last decade talking about teaching. This revised edition re-flects many of those conversations. It has been a pleasure working with andlearning from Jim.

Jim and I are indebted to many people who assisted in this redesign. Thankyou to our colleagues who offered ideas and feedback throughout this process.Special thanks to our students from whom we constantly learn how to be betterteachers. From our research assistants (Ben Holwitt, Andrew Kij, and NicolasPistory), who kindly agreed to serve as guinea pigs for the online platform ex-ercises, to the thousands of students we have taught, thank you.

More personally, thank you most to Mark, Clara, and Hank. You make lifebetter.

CPBBuffalo, NY2020

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Preface to the Second Edition

In the fifteen years since I wrote the first edition of this book, a new gener-ation of law students has appeared, with different strengths, weaknesses, andoutlooks than their predecessors. Teaching these students how to litigate hasforced me to alter my own approach to teaching legal argument, and has con-vinced me that a new edition of this book is now necessary.

The cohort of students for whom I originally developed this material seemedto need help mainly with the construction of legal arguments. Many of themgot stuck right at the starting line, but once they got over the initial hump byjump-starting an argument, they often could take things from there. Today’sstudents still often get stuck at the same initial point, but I also find themgetting hung up more than their predecessors at another point in the advocacyprocess: at the point where it comes time to translate their conceptualarguments into well-written briefs.

Consequently, this edition of Legal Argument retains at its core the syllogisticmethod of argument construction as the basic vehicle of instruction. However,because today’s students need more direct instruction in how effectively topresent in writing a well-constructed legal argument, the main changes I havemade in this edition are directed primarily at providing more information andinstruction concerning how to write a good legal argument once it has beenconstructed.

Those who have used the book before will find the first eight chapters vir-tually unchanged from the first edition, except that Chapter 8 now includesan additional example of how to construct a complete argument, this onedrawn from a complex statutory scheme, the Endangered Species Act. The for-mula for and extended example of briefwriting likewise remain the same, andare now contained in Chapter 10.

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The new material appearing for the first time in this edition is designed tosupplement the account of how to build an argument by providing much moreinformation about how to write an argument. Chapter 9 openly and expresslydistinguishes the enterprise of constructing an argument from the enterpriseof writing it, a subject that was treated in the first edition mainly through im-plication, and goes on to offer direct, easily digested advice on how to tell agood story. Chapter 11 contains substantial new advice on how to avoid themost common problems of briefwriting. Chapter 14 also is new, and dealswith several advanced techniques of legal writing including how to present thelaw persuasively, how to frame issues effectively, and what to emphasize (ornot) in the course of a written argument. Finally, Chapter 15 deals with main-taining professionalism in advocacy, a topic that anyone who has taught legalwriting to law students in the last five or ten years knows requires separate andemphatic presentation.

Many people have helped me in ways too numerous to recount with the de-velopment of the material in this book, but I owe by far the biggest debt ofgratitude to the hundreds of students who over the years have taken my classesin Litigation Practice, Federal Litigation, and Environmental Litigation. They,more than anyone else, taught me how to teach this subject.

JAGBuffalo, NYJuly 17, 2007

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Introduction

“So you want to be a lawyer? It’s easy. Here’s a problem. Go out and dothe research. Then come up with some arguments. Then write themdown in a brief. Have a nice day.”

If this is how you experience law school, you are not alone. Many studentsexperience their legal education primarily as a disjointed series of exposuresto apparently unconnected bodies of substantive law, threaded together badly,or not at all, by haphazard exposure to some unarticulated common method-ology. There is something we do in all those classes that is the same— butwhat is it? Nobody ever seems to come right out and identify or explain thecommon enterprise.

But just what is it that law students aren’t being taught? By the end of thefirst year most law schools have done a reasonably creditable job of teachingstudents how to read legal materials and extract from them the relevant rulesof law. Most law schools also do a good job of teaching students how to per-form research in legal materials; within a few months students usually cannavigate online legal sources and do basic research. Law schools also givestudents at least some early exposure to the practice of legal writing. Sowhat’s missing?

For students who feel confused by their legal education, the missing partoften lies in the middle. These students can read and understand cases andstatutes, and they can write up and defend sound legal arguments. The dif-ficulty lies in producing the arguments. I can read and understand the cases,

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xx INTRODUCTION

they say to themselves, and I would be delighted to write a brief making thebest possible arguments, but what are those arguments? How do I identifythem? How do I build an argument that is sound, and persuasive, and well-fortified against attack? Cases and statutes don’t yield this information. Onceyou have assembled them, they just lie there, inertly, on the desk. How, theambitious law student wants to know, do I make those little suckers stand upand dance?

If you are with us so far, then this book is for you. The book has two mainpurposes. The first is to explain how lawyers construct legal arguments. In thisregard, the book is meant to be a purely practical guide to the seemingly mys-terious process by which lawyers take the raw materials of litigation— cases,statutes, testimony, documents, common sense— and mold them into instru-ments of persuasive advocacy. The book’s second purpose is to explain how totake a well-constructed legal argument and present it, in writing, in a way thatlegal decision makers will find persuasive. The book, in other words, is con-cerned with how to (1) build and (2) present winning legal arguments.

We must stress immediately that these are two very different skills. Buildingan 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 onstable foundations, that will weather harsh conditions, and which can thereforebe used with confidence. Writing arguments, in contrast, is a task of salesman-ship; its goal is to persuade a judge to rule for your client. There is no necessaryconnection between the skills of construction and sales. In most lines of work,designers do not also sell their products: architects build houses and realtorssell them; engineers design cars for sale by dealers. The capable lawyer, in con-trast, must master both kinds of skills.

There is, however, one important connection between building andwriting arguments, between construction and sales: it is easier to sell a well-made product. Someone who has a quality product can sell it simply byshowing it, clearly and honestly, to the buyer; the seller has nothing to hideand 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 awayfrom the product’s weaknesses, and rely on puffing and other forms of de-ception to close the deal. Consequently, this book emphasizes heavily theconstruction of arguments that are not flashy and clever, but merely coherentand solidly grounded— arguments that plod on, point by point, clearly andrelentlessly, to the finish line. Such arguments are the true workhorses oflegal practice.

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But what about those flashy arguments— the clever one-liners, the bril-liant, discussion-stopping retorts? The truth is that they don’t exist. Ourcombined decades of teaching have convinced us that many students maketheir way through law school suffering from a fundamental misimpressionof what successful legal argument is all about. They seem to believe that win-ning is simply a matter of finding just the right argument— that out therein the universe of all possible arguments lies the one argument that, if onlythey can find it, will by its mere utterance, in a single, satisfying blow, utterlydevastate the other side and thereby win the case. This, some students seemto believe, is what law professors really know, and what they are hiding fromtheir students.

This belief is false, though the impulse to believe is understandable. Wouldn’twe all like to know, like Harry Potter, the incantation for a spell that paralyzesour opponents, or to be able, like Mr. Spock on the old Star Trek televisionshow, to pinch people’s necks so that they slump instantly into unconsciousness?Once we acquire knowledge of this sort we become unbeatable. Who wouldn’twant 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 adecisive, knockout blow. Legal fights usually go the distance, and are won onpoints. The winner is the contestant who is fitter, better prepared, and moredetermined, and who lands the most good blows. That is why this book focuseson craft— the craft of constructing legal arguments that are sound, sturdy, andcoherent. 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 con-struction of syllogisms, designed to walk the advocate through the process bywhich such a winning argument may be crafted. Before introducing thismethod in Part I, however, we need to issue a warning lest the reader mis-construe the book’s method as the very kind of magic bullet we have justclaimed does not exist. Unlike a spell or secret grip, the book’s method doesnot save the user work, thereby making effective advocacy easier. On the con-trary, it creates work, making advocacy harder, though in the end more ef-fective. It does this by forcing advocates to think through issues that theymight not otherwise consider, and to do so thoroughly and systematically. Indoing this, the method enforces a kind of discipline to which all goodadvocates inevitably must adhere, though many of them do it intuitively ratherthan by following a protocol laid out in the pages of a book.

So just what issues does this protocol force people to contemplate that theymight otherwise overlook? It forces advocates to conduct a kind of researchwithin themselves. It forces them, in other words, to figure out what they think.

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Law schools invest substantial time and resources in teaching studentsdirectly and explicitly how to conduct research in case law, statutes, adminis-trative regulations, and other legal materials. This is research students conductoutside themselves, as it were, to assemble information for use in legaladvocacy. But there is another resource in which advocates must do substantialresearch before they can mount a good legal argument: they must look,carefully and deeply, within themselves to figure out what they think about thelegal 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, andit is the ability to analyze and effectively defend the subterranean infrastructureof 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— andthe lawyers who get most roughed up in court— are the ones who know whatthey think, but not why they think it. These are the people who can always an-swer the first question, but never the second.

The method of argument construction set out in this book is nothing morethan a heuristic that forces advocates to do the necessary internal research.Indeed, the entire first seven chapters of this book amount to nothing morethan an elaborate exhortation to advocates to keep asking themselves “Whydo I think that?,” over and over, until the question eventually becomespointless and can no longer be answered. If you already know how to dothis— 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. PartI sets out a general methodology for constructing legal arguments. Thismethodology centers on the use of syllogisms and the process of what we call“grounding” their premises. Part II focuses more closely on the constructionof persuasive, well-grounded legal premises, and covers the effective integrationof legal doctrine and evidence into the argument’s structure. Part III showshow to put the method to work by giving two detailed examples of the con-struction of complete legal arguments from scratch.

The book then turns to a very different task: after you have done your re-search, both external and internal, how do you present it persuasively to acourt? Part IV provides a detailed protocol for reducing well-constructed legalarguments to written form, along with a concrete illustration of that process.It also provides specific advice on how to recognize and avoid a host ofcommon mistakes in the written presentation of legal arguments. Part V, thefinal part, moves from the basics into more advanced techniques of persuasive

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INTRODUCTION xxiii

legal argument. These include rhetorical tactics of framing and emphasis, howto respond to arguments, maintaining professionalism in advocacy, and theethical limits of argument.

A final warning is in order. This book provides a methodology for con-structing legal arguments, but no methodology, in this discipline or any other,can ever be more than a reliable rule of thumb. A methodology can providehighly useful guidance to the initiate and the expert alike, but it is never a sub-stitute for practiced judgment based on real experience. The true master of acraft 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 containedin this book should be taken in this spirit.

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