Argue regarding Arguing: Why Procedure Matters

You may be at home with the story regarding the Vietnam Paris peace talks in 1972-1973, abundant of the preliminary negotiations were involved with the form of the table around which the discussions would crop up. Whereas this specific negotiation was imbued with nice symbolic worth, and so had vital outcome-determinative consequences, different procedural choices typically have direct outcome-determinative consequences—they could decide United Nations agency wins and United Nations agency loses.

Knowing this, lawyers can argue ferociously regarding procedural choices. They are doing therefore once a method of backward induction during which they confirm however the procedural call can have an effect on their probabilities of winning.

Depending on that court you’re in, one law would possibly apply as hostile another, and therefore the law that applies might confirm United Nations agency wins. The litigator sometimes gets a primary shot at determinant wherever the case are brought, and complicated plaintiffs can opt for the court which will apply the law which will lead to their triumph. the method of determining one’s most popular court is what lawyers decision “forum-shopping.”

The following hypothetic call tree shows however this method of backward induction would work. The litigator includes a alternative of suing in Kansas, Japanese, or French courts. Japanese and Kansas courts would every apply their own ways of selecting the applicable law, however we are going to assume that each their ways would lead to the applying of French law.

The French court would apply a special methodology of selecting the applicable law, that we are going to assume would lead to the applying of Kansas law. The litigator believes that it’s a really smart probability of winning if Kansas law is applied and a really smart probability of losing if French law is applied. So, once it completes this analysis, the litigator tries to bring the case during a French court. If the suspect sees a similar image, it fights the plaintiff’s alternative of a French court.

Process and substance are tangled, and infrequently indivisible. If your opponent has the higher substantive argument, counter with procedural arguments that may amendment the substantive rules or that may build your opponent’s argument harder to create.

Such blessings on a court wouldn’t flip Pine Tree State into Novak Djokovic. However they are doing increase my probabilities of winning against my seemingly opponents. And positively once the best players contend, every seeks each tiny supply of advantage. Champion lawyers aren’t any totally different. You accomplish champion standing by seeking each tiny supply of advantage and aggregation these multiple tiny blessings into dominance.


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