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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Consider the implications of the prior sub-section: the law itself may be inconsistent with substantive justice—it may be inconsistent with what you or I believe is right.

Therefore, argument within a legal system is different from argument outside, because the legal system is sympathetic to certain arguments that would not meet as great a welcome outside the legal system, and because it discounts other arguments that would be more appealing outside the legal system.

To a great extent, the legal system itself sets the rules about what kinds of arguments will be successful within that system. The legal system is partially independent of the society in which it operates.

But the crossroads here is that the character of a system is totally different from the character of different forms of social systems. This book focuses on the categories of arguments that are characteristic of legal systems.

And yet, as a result of these arguments can also be understood as natural, human arguments, that answer normal logic, and that are supported common realities of structure, it’s not stunning that these arguments resonate and are helpful in non-legal contexts further.

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Procedural Justice and Substantive Justice

This is a favorite game of the law professor: to bait an unsuspecting law student into explaining how a particular legal outcome is “just.” You should decline to attempt to defend that ground: the answer to the professor is that the legal outcome may well be unjust, at least in terms of substantive justice. Mere legal rules can never hope to achieve more than an approximation of substantive justice, and determining an outcome’s justice is not part of the legal profession. (It is the duty of each of us as citizens, but that is not the subject of this book.)

More importantly, in a liberal (democratic, rule-of-law-based) system that accepts a variety of visions of substantive justice, the actual law that is legislated can be seen as a compromise among these varying visions. In a liberal system, we each accept that individuals may have varying visions of substantive justice, but it is still valuable to be able to make laws even though they, by necessity, fulfill some individuals’ vision of substantive justice and deny others.

On the other hand, in a religious law system in which the religion purports to know the details of substantive justice, all the law needs to do is to follow the religious vision and it will comport with substantive justice. Law that does not accept the possibility of diversity of values is, by definition, illiberal.

Therefore, in liberal societies, law is understood to be separate from ethics and not necessarily congruent with justice.

Legal argument addresses the question of how we agreed earlier—in law or in contract—to address the problem that has now arisen. It addresses the question of how the law governs the matter at hand rather than how the law should have been formulated to do so. So, legal analysis is different from both public policy analysis and ethical analysis.

Some may observe that this focus on what was agreed, instead of what is right, is fundamentally unjust. However, in a liberal system, individuals have implicitly or explicitly agreed that no one has a clear and infallible vision of justice. There simply is no accepted Archimedean point from which to measure justice. Rather, individuals in a rule-of-law-based society have implicitly or explicitly agreed to accept the outcomes of the constitutional and legal process, because they have come to a belief that this system provides as well as possible a compromise among varying individual visions of justice.

This liberal perspective suggests that the procedural justice reflected in adherence to the system outweighs a particular vision of substantive justice. When U.S. Supreme Court nominees traditionally testify at their confirmation hearings that they will apply the law as written and will not engage in “judicial legislation,” they are pledging allegiance to these procedural justice values and foreswearing the application of their own vision of substantive justice.

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One of the best responses to any argument, of any kind, is simply to ask, “How do you know?”

 That is, the most persuasive arguments answer in advance the “how do you know” question by setting out the pedigree of each proposition. This strategy of full disclosure is less advisable where your positions are weak. But when they are strong it can “shock and awe” your opponent into submission.

There is no more satisfactory feeling than to do your homework, lay out the arguments, and have your opponent concede that he cannot honestly hold back your tsunami of argument. Where your arguments are this good, it is often strategically advisable to lay them out in detail, even though doing so gives your opponent a chance to respond.

This is why lawyers love footnotes. A good footnote preempts argument by showing the support for the proposition. It allows the decision-maker to see how well supported the argument is. Legal argument even has a particular set of rules for citation that is intended to discipline and guide the use of references. These rules require a degree of disclosure of the kind of support provided by the material cited. It establishes a set of rules of the game regarding how we assert the pedigree of our knowledge.

However, preemptive display of the basis for your arguments provides an opportunity for your opponent to scrutinize those arguments for flaws. Thus, where your opponent sees that there is no footnote or other display of the pedigree of your information, or where the footnote shows weak support, he can seek to exploit your weakness. In reasoned argument, you always have a strategic choice whether to make preemptive display of your back up in citations or not, often depending on the context and the opportunity you will have to provide the support later.

On the other hand, where your opponent fails to set out the pedigree of his propositions, or where, after examining the pedigree of his propositions for yourself, you otherwise identify a weakness, you must put him to his proof. Following Highet’s strategy, you must pull on that loose thread and ask why we should believe this unsupported proposition. In a more nuanced way, you must test the quality of the pedigree of each of your opponent’s essential propositions—some may purport to be well supported, but may actually be weakly supported, or even contradicted. Facts can be appreciated in different ways, and support for a proposition is often in the eye of the beholder.

There are two types of knowledge that are important in law: knowledge of facts and knowledge of law. While lawyers may be adept at proving or disproving factual statements, the more characteristic part of legal practice involves determining what the law is. Importantly, there is an iterative, interdependent, relationship between law and facts.

The facts that we identify tell us what legal rules are likely to be applicable, and the legal rules tell us what facts are salient. For example, we do not know whether to examine the law of murder unless someone has died and we suspect improper causation: what is known in pre-modern detective stories as “foul play.” Once we see death and improper causation, we can look at the law of murder to see whether this is a case of murder.

The crime of murder has several factual elements that must be proven in order to convict the perpetrator. If one of the factual elements cannot be proven, another legal rule might apply. For example, if there was no bad intent on the part of the person who caused the death, we might examine the crime of manslaughter, or the civil wrong (“tort”) of wrongful death.

If there was bad intent, but no death, we might examine attempted murder or assault as possible crimes. Again, once we know some of the facts, we know where to look. Creative lawyers are those who are able to identify elements of crimes or causes of action that may not readily fit together or be perceived as a particular crime or cause of action.

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The analysis/synthesis method outlined above is applicable to all determinations of whether there is a violation of the law, or whether there is a violation of a duty under contract or a tort, giving rise to a claim. However, it is wholly inapplicable in connection with arguments about what the law should be.

In fact, the greatest single revolution in legal research in the last 50 years has been the development of the field of law and economics, bringing social scientific methodologies to bear on policy questions about the law. This study asks questions about the empirical results of legal rules, as well as asking how legal rules come to be made. Law schools have increasingly recognized that the traditional disciplinary tools of law can be greatly enhanced by incorporating other social scientific disciplines when the goal is to create or evaluate public policy.

The field of law provides no insight into whether there should be a minimum wage, whether capital gains should be taxed at a lower rate, whether capital punishment is a good idea, or how long a prison sentence should be. Economists, philosophers, sociologists, and other experts have better tools to respond to these types of questions.

Nevertheless, in the U.S., and in many other countries, lawyers have a leading role in government, including in legislation and regulation. And experienced lawyers can indeed be helpful in evaluating the mechanics of a particular law. For example, they can evaluate whether courts or other decision-makers will be able to determine the different components accurately or not, or whether a rule can be applied consistently.

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Lawyers make formal arguments in court and elsewhere. A formal argument needs to be consistent with formal logic, and it needs to begin with a base of knowledge and build from there, using the rules of logic or the rules of inference.

So, in order to think like a lawyer, you need to know how to think. Surprising, eh? This article does not provide a deliberate introduction to formal logic, but it does point out some of the basic fallacies that can plague argument or hide the perfidy of sophists.

The rules of inference, drawn from all the sciences—all the ways in which we know things—are the customary or consensus-accepted methodological conventions that tell us whether it is permissible to draw a factual inference based on a certain quantity or quality of data. For example, statisticians and econometricians have a highly developed set of rules of inference that they use in their work. These rules can seem arbitrary, but they have been accepted by consensus as a useful basis for discourse.

We must recall that it is a social choice whether the legal process, or any other decision-making process, will simply accept these rules of inference. (The rules of logic are pretty, well, irrefutable.) For example, as you know, we have standards of proof in law for certain things; in the U.S., conviction of a crime requires proof beyond a reasonable doubt. This is a higher standard than that which we might use in our daily lives for determining whether someone is a criminal.

 But it does not show how, or even show directly that, smoking causes cancer. Correlative relationships are “circumstantial” evidence, which we sometimes disdain, but circumstantial evidence can still be useful in reasoned arguments. You may have seen a television or film courtroom drama in which a lawyer discounts evidence that is merely “circumstantial,” but the truth is that circumstantial evidence is often a good, if not irrefutable, basis for inference. Much of what we know is based on circumstantial evidence.

In fact, a statistician might ask what this “beyond a reasonable doubt” standard of proof means—how would you quantify this level of probability? The often-used convention of statistical significance states that if there is less than (choose one) a 5% or 10% possibility that an observed correlation is just random chance, it will be deemed “statistically significant.” If analysis shows that the correlation is stronger than the selected level of statistical significance, does this mean that the correlation has been proven “beyond a reasonable doubt?” Aren’t statisticians the consummate “reasonable people?”

Most of us would answer that we seldom can reduce evidence of a crime to statistical measurements—there are multiple pieces of evidence, each with different significance or weight. Even if we could measure the probability of crime statistically, we might feel uncomfortable doing so. But the response to this discomfort is to ask whether the discretion retained by not specifying a quantitative threshold is consistent with the idea of the rule of law, which is defined as the absence, or at least the minimization, of human discretion.

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Following is an example of good drafting following an “if-then” formulation:

If Party A suffers any losses as a result of environmental contamination of Property X arising from actions of Party B, then Party B shall compensate Party A for the full amount of such losses.

Thus, the components of a claim for compensation under this provision are (i) losses (ii) suffered by Party A (iii) as a result of environmental contamination (iv) of Property X (v) arising from actions of Party B.

Of course, analysis is not exclusive to lawyers. In ordinary social life, we might ask whether an associate or friend has lied to us. In order to do so, we might ask ourselves, what are the components of lying? Let’s say that in your community (we will stay out of the legal system for now) the consensus-based components are the following: (i) the alleged liar must speak, (ii) the speech must be false, (iii) the speaker must know that it is false, (iv) the false speech must be intended to hurt another, and (v) the false speech must actually hurt another.

We all know about difficulties with some of these components. Is a “white lie” (where no one is hurt, or where no hurt is intended) a lie? Is silence in the face of another’s misapprehension of the facts a lie? The best analytical approach is to determine the elements that are required and then to determine whether each element is present. In a legal system, a legislator determines which elements are required, while a court determines whether each element is present.

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Here is wherever I reveal the most mode of thinking sort of a attorney. Drum roll, please. we have a tendency to decision it “analysis and synthesis.” Lawyers break legal queries down into elements, or components, of a criminal offense or of a claim, then analyze every part individually. So, if the weather of the crime of murder embrace intent, causation, death, and lack of excuse, we have a tendency to analyze every of those elements individually then synthesize the analyses for an entire understanding.

It’s not rocket science, folks. however it will dissent from what could also be the layperson’s approach, that is to succeed in a conclusion less through the separate analysis of elements, however additional holistically or impressionistically. The common person may conclude “that’s murder” or “that’s theft” or “that’s fraud” within the sense of common expression, while not inquiring the analytical steps needed by law. behavioural scientists have confirmed that personalities, over we’d prefer to admit, reach conclusions 1st and analyze later. The legal discipline is enticing wherever it will slow things down and permit America to suppose analytically before reaching a conclusion.

This kind of analysis and synthesis is additionally the key of fine legal writing. within the 1st paragraph, or section, of your argument, break the crime or claim into elements: analyze the claim. In future paragraphs or chapters, examine every part individually to see whether or not it’s factually glad. Once you’re finished, it’s straightforward to “synthesize” or cross-check all the weather and see whether or not they comprise the crime or claim in question. this can be the last paragraph or chapter. Yes, it’s dry and stylistically sure, however its beauty is within the magnificence of its operate. smart legal writing, like different informative writing, ought to be parsimonious—including exactly what’s necessary to succeed in the conclusion, and zip additional.

All legal prohibitions or needs, as well as those in an exceedingly contract, take the logical type of “if-then” statements: if x, y, and z, then a. The initial analytical question merely asks “if what?” what’s enclosed within the “if” portion of the if-then statement? the solution is that those area unit the weather of the crime or claim, or of the written agreement obligation. So as to see “if what,” we have a tendency to merely scan the law or contract and confirm what conditions it specifies for the relevant legal consequences. Once we all know the weather, we all know what goes within the “if” portion. The law specifies the consequences: the “then” portion.

This analytical technique is repetitious and inductive—we don’t apprehend that potential “if-then” statements to consult till we have a tendency to see if a number of the “ifs” area unit glad. We glance at those “if-then” statements that area unit doubtless glad by the facts we have a tendency to at the start determine, then pursue associate degree analysis to visualize if they’re so absolutely glad.

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Having been to law school, practiced law for a decade, and taught law for more than two, I believe that I can convey in this brief article the essence of thinking like a lawyer, what I like to call “the art of reasoned persuasion.” Sure, there is much to learn in law school to prepare people for the legal profession, but the experience can fall short in empowering students with these critical thinking skills. Unfortunately, some law schools fail to do a good job teaching, and some law students fail to do a good job learning, how to think like a lawyer. Therefore, it is neither necessary nor sufficient to attend law school in order to acquire these essential tools.

Law school has three main educational components. First, a large part of law school in common law countries, like the U.S., is devoted to learning to argue about whether a given precedent governs a new fact situation. Second, much of the time in law school is spent learning the specifics of particular legal rules and how to look up particular legal rules. Third, a great deal of modern law school education in the U.S. is devoted to learning what the law should be—to normative thinking about the law.

Regarding the latter point, although law schools are improving, the techniques taught there for determining what the law should be are generally inferior to the techniques available in other disciplines, such as economics or philosophy. After all, economics offers the strongest social scientific tools of empirical evaluation of the results of legal rules, while philosophy offers the strongest analytical tools for evaluation of moral goals.

While this article conveys the essence of thinking and arguing like a lawyer, I must concede that I only learned most of what this book contains after law school. In law school, most of the tools of legal thinking and argumentation presented in this book are only addressed incidentally or indirectly. As a law professor now, I daresay that if I had read this book before law school, I would have had a more complete set of tools of legal analysis than some of my professors.

The ability of “thinking sort of a lawyer” and therefore the tools of argument draw from a range of graduate school studies and legal apply. It involves associate degree analytical understanding of rules, evidence, and logical inferences. it’s each rational and remorseless. It fixates deliberately on airtight “problem solving” for the question: however am i able to persuade a decision-maker that I ought to win?

The talents given embrace variety of recognisable and separate elements that, severally, area unit rather easy. once combined artfully, they permit you to construct a formidable argument. I describe these skills in clear and accessible terms, with examples.

My goal is to modify you to adapt them to real world things any time that you just area unit disputation regarding principles, rules, facts, or agreements. The utility of those tools of argument is by no suggests that restricted to room or different legal settings.

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Legal practice is, to a great extent, ethically ambivalent.

 In the U.S., we like to think that our system of legal advocacy is a crucible that forges accurate application of law. In a broader social setting, you might acknowledge that competent and honest argument over the application of rules, principles, and policy will allow fair decisions to prevail.

Understanding the tools of argument will allow you to be more persuasive, to counter the arguments of opponents, and to make decisions when you are the target of persuasive arguments. The best tools of argument are also tools of thinking and will enable us to persuade the most important decision-makers—ourselves—as to what is right.

The Importance of Preparation

Good preparation consists of considering your facts and the applicable rules, and of thinking about the ways in which each argument described in this book may be applied, either to support your side, or to support that of your opponent.

The Power of Texts and the Incompleteness of Texts

Law is primarily composed of written rules. While there are important unwritten rules, and lawyers play a critical role in arguing about what those rules are, most of the work of lawyers is concerned with written rules. Written rules, produced by a government as laws, or produced by private parties as contracts or other rules, are best understood as a specification about how people will behave in the future, or at least about the consequences of certain behavior in the future.

The important point here is the temporal one. Laws (and contracts) are prepared in advance to control later behavior. Legislation is the mechanism by which societies agree in advance about what to do to prevent or affect specified behavior. This is a valuable mechanism, allowing societies to overcome cooperation problems so that they can create public goods or prevent individuals from doing harm to one another. Law is essential to our character as a social animal and to humanity’s ability to improve its welfare.

All laws, and all contracts, are inevitably incomplete.Other times there is no legal or contractual rule to apply—a gap in our structure of rules. In these cases, the law or contract cannot affect behavior or impose penalties, and any loss remains where it falls.

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