The Tools of Argument: How the Best Lawyers Think, Argue, & Win by Joel Trachtman
[Book Notes Disclaimer: This is not intended to be a book summary, only the contents I found to be the most interesting, potentially valuable, or otherwise relevant at the time of reading. Most of these notes are directly copied lines from the book, but some are personal adaptations or added personal insights.]
– One of the things that lawyers do in response to rules asserted by opponents is to examine the rule’s pedigree: where did this rule come from, what was the authority of its author, and does it have sway over this case?
– Law, like taxes in the words of the great judge Oliver Wendell Holmes, is the price of civilization.
– The core work of the lawyer is not to argue about what the law should be, although this sometimes is salient . Rather, the work of the lawyer is to argue about and determine what the applicable law is, what the facts are, and how the facts fit into the applicable law.
– Sophistry: the use of fallacious arguments, especially with the intention of deceiving; knowingly using unsound logic or specious reasoning to win an argument
– Lawyers are the modern heirs of the ancient Greek sophists, the worst of whom sought to “make the weaker argument appear the stronger.” Sophistry is ethically unappealing but is often rationalized by technicality or gamesmanship.
– The true stronger argument is the argument that meets some objective test of strength, and that should win. But, you might ask, where does this objective test come from? Is it based on first principles, justice, or truth? Unfortunately, as culturally-biased human beings, we often disagree about first principles, justice, and truth.
– Lawyers are trained to think in terms of legal right and legal wrong (which is one of the things that people find objectionable about them).
– Sometimes decisions must be made, even if they are imperfect and even if there is a degree of right on both sides. However, it is good to remember that there is significant nuance.
– Legal practice is, to a great extent, ethically ambivalent. Lawyers pledge to represent their clients zealously, and so they are charged, where their client is wrong, with trying to make the weaker argument appear the stronger. … This book is not intended to school sophists. But it does include a taxonomy of the tools of sophistry so that they can be identified and countered.
– In legal practice, as in general argumentation, preparation is everything. … By evaluating each of the components of your position, and of your opponent’s, you will be able to see which arguments are available to you and which are available to your opponent.
– Good preparation consists of considering your facts and the applicable rules.
– 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.
– The essence of thinking like a lawyer, what I like to call “the art of reasoned persuasion.”
– Here is where I reveal the main mode of thinking like a lawyer. Drum roll, please. We call it “analysis and synthesis.”
– Lawyers break legal questions down into components, or elements, of a crime or of a claim, and then analyze each component separately. So, if the elements of the crime of murder include intent, causation, death, and lack of excuse, we analyze each of these components separately and then synthesize the analyses for a complete understanding.
– Good legal writing, like other expository writing, should be parsimonious—including precisely what is necessary to reach the conclusion, and nothing more.
– Analytical Method (example): for legal responsibility for a civil (non-criminal) wrong, or “tort,” there must be (i) a duty, (ii) a violation of that duty, (iii) causing (iv) harm (v) to a person owed the duty, (vi) where there is no defense such as necessity or contributory negligence. If each of these conditions is met, then there is legal liability for the tort.
– The analysis breaks the prohibition or requirement into component conditions then sequentially evaluates whether each condition is met. The synthesis merely observes whether each condition is met.
– If you can learn to do this—if you can recognize the factual parameters of each rule and then address the definitional and factual difficulties of each parameter—then you are already well on your way to thinking like a lawyer.
– 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.
– 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.
– One of the best responses to any argument, of any kind, is simply to ask, “How do you know?” Putting your opponent to his proof can be an effective strategy. By asking, “How do you know,” we are implicitly saying that it is the opponent’s job to supply proof rather than our job to supply contradictory evidence. We are implicitly shifting the burden of proof.
– More often than not, there may be gaps in the chain of logic or evidence. Once we find a gap, we just need to attack it until the entire argument falls.
– FIND THE GAP – the contradiction, the inconsistency, the over-generalization, the false or assumed detail, the piece of missing evidence, the missing fact, etc. Attack the gap. Do not allow it to go unfilled, in fact WIDEN IT to further dismantle the argument. And if there is no gap, think how one could be created.
– The loose thread strategy: pull on that thread and the fabric of your opponent’s argument unravels.
– 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 or she cannot honestly hold back your tsunami of argument.
– 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 – you must pull on that loose thread and ask why we should believe a loose or unsupported proposition.
– 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.
– 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.
– In our legal 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.
– Ethical argument addresses the question of what should be, or what we should do, while legal argument generally addresses a wholly different question: 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.
– 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 universally absolute point from which to measure justice.
– Our 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.
– Procedural justice is principally important, and generally works, because it involves direct reference to what we collectively agreed upon as right or wrong (ie the Constitution). If our justice procedure was too malleable then we would have no way of exacting any type of substantive justice, thus procedural justice must be primarily upheld.
– Process and substance are intertwined, and often inseparable. If your opponent has the better substantive argument, counter with procedural arguments that can change the substantive rules or that can make your opponent’s argument more difficult to make.
– Virtually any decision can be attacked on the basis that the process by which it was made was somehow defective. … Conversely, lawyers know that if they want to make a decision stick—make it effective—they will need to follow an acceptable procedure. If the decision is likely to benefit you, make sure that the procedure by which it is made is good in order to safeguard the expected results.
– Where a party would expect to lose on the substance, it is advantageous for that party to seek to avoid the decision-making mechanism that would declare or confirm that loss.
– An argument of bias can be made in advance of a decision: the respondent can argue that the decision-maker selected by the complainant is biased against him, and so should not be allowed to proceed.
– A refined sense of conflict of interest and a refined sense of bias are imperative for an effective approach to procedural argument.
– In jury trials, lawyers have an opportunity to try to identify the proclivities or bias of prospective jurors through a process known as “voir dire.” Lawyers will be allotted a certain number of challenges for no stated reason and may have additional challenges that they can use if there is evidence of possible bias.
– The power to frame the question is the power to decide the case.
– At the moment of definition of the matter in dispute, it is important to think carefully about all of the alternative ways in which a dispute might be framed.
– One of the most creative and valuable things a lawyer can do is to reframe the issues—to characterize a dispute as a different type of case than what was originally understood. This technique is also remarkably effective in non-legal discourse.
– Point: Fire retardants are needed to prevent fires. Counterpoint: Fire retardants cause cancer and brain damage. Counter-counterpoint: Restrictions on the use of fire retardants will disproportionately harm minorities.
– The “LEX SPECIALIS” principle: in the event of conflict between two rules, the more specific rule should be applied.
– We should not use more confrontational or drastic methods of dispute settlement when less intense methods have not yet been tried.
– In any argument, who will win may depend on who has the burden of bringing forth evidence of his position (burden of production), and who has the burden of persuading the decision-maker of the correctness of his position (burden of proof).
– You might say that the burden of proof is like a presumption: we presume that things are best left as they are unless the person assigned the burden shows us differently.
– The U.S. burden and standard of proof in criminal cases: The burden is generally on the prosecutor to prove guilt and the standard is “beyond a reasonable doubt.” This burden of proof is consistent with an assumption that the accused is “innocent until proven guilty.” The criminal standard of proof is set at a relatively high level. In U.S. civil cases, the burden is generally on the plaintiff to prove his case by a “preponderance of the evidence.”
— In general terms: the accuser has the burden of proof. He or she who accuses must prove it. I.e. with a seller’s disclosure – the seller doesn’t have to prove that they were unaware of a defect, the buyer must prove how the seller must have been aware of the defect.
– Wherever possible, it will be advantageous to argue that your opponent must bear the burden of proof. Where there is no prior understanding about the allocation of the burden of proof, it is always helpful to argue for the allocation of the burden to your opponent. (As the accuser, you can flip the script on whom you’re accusing, especially if you’ve already provided a bit of evidence or sound reasoning – you can claim it’s now on them to prove you wrong.)
– In informal discourse, you can shift the burden of proof with a simple “how do you know” in response to your opponent’s assertion. A savvy opponent might respond that it is not his job to sustain a burden of proof, but yours. He can do so simply by saying, “How do you know I’m wrong?”
– If someone complains about your behavior, you may argue that he has the burden of proving its danger or inappropriateness. If positions are reversed, and you complain about someone else’s behavior, and he attempts to allocate the burden of proof to you, you may assert that his special capabilities, other circumstances, or the special risks involved in his behavior, are reasons to allocate the burden of proof to him.
– Point: You’ve done something wrong, and it has caused me harm. Counterpoint: i. It has not harmed you. ii. It has not harmed you nearly as much as you say. iii. Even though it has harmed you, there is nothing that I am required to do to compensate you. iv. While I may be required to compensate you, you have no way to force me to do so.
– At the core of the legal profession, and at the core of the distinction between lawyers and others, is concern for process values.
– We sometimes refer to these ‘process values’ as mere technicalities, or even worse as loopholes, but the legal profession and a rule-of-law-based society are committed to the principle that process values are real values and should sometimes overcome substantive values.
– Good process is a central component of good management and good policy making. Perhaps this is because good process, and the kind of careful analysis that is a hallmark of legal thought, is a way to question the emotional or unconsidered impulses that can adversely influence our decision-making.
– Effet Utile assumes that utilization of different words is intended to convey different meanings—that use of different words is not just for stylistic reasons or due to random unintentional usage variations.
– All verbal expression intended to govern future events is, by its nature, incomplete. This incompleteness is endemic to all verbal expression in law, including contracts and statutes. To the ordinary person, this is a problem; to the lawyer, it is an opportunity for advantage.
– “There are two opposing canons [of interpretation] on almost every point.”
– Three approaches to original intent: Subjective original intent (what the authors specifically had in mind); Objective original intent (what the author’s words meant at the time they were used); Objective original intent w/ intended evolutionary change (the author’s words were intended to develop over time)
– One of the most attractive methods of legal interpretation is to refer to the context.
– In addition to examining meaning (of words), original intent, and context, interpretation of text can be approached by considering the purpose of the document.
– One of the essential functions of lawyers is to identify wiggle room in contracts, statutes, and treaties and to eliminate it. It takes a careful, imaginative, and suspicious turn of mind to do it well.
– All rules—whether they are contained in laws or in contracts—are necessarily incomplete. Two types of incompleteness: 1) in the delineation of the meaning of words contained in the rules [rules open for interpretation]; 2) rules do not address all of the issues that can come up in relation to the matters addressed in the law or contract in the fullness of time [rules cannot anticipate all future conditions]
– As a tool of argument, one’s position on the separation of law from morality would depend on the expected outcome. If I lose on the law itself and need the application of morality in order to win, I can argue for its important role in interpretation…
– On the other hand, if the application of morality causes me to lose, I can argue that the legislature, in formulating the law, already made the social decision, including as appropriate all considerations of morality.
– Procedural justice cannot be carried too far: the greater the substantive injustice, and the greater the certainty of substantive injustice, the more difficult it becomes to argue that there is an obligation to comply with an unjust law.
– Effet utile, French for “useful effect,” is an assumption that is made in interpretation of legal rules or contracts to the effect that the author meant to accomplish something by the words used: The phrase “limited exception,” with the assumption that exceptions are always, well, “exceptional” and therefore narrow, must have a narrower meaning than the word “exception” standing alone. Otherwise, the word “limited” would have no effet utile.
– Lex specialis: when faced with a conflict between rules, choose the one that applies more specifically to the facts. BUT: Where there is evidence that the draftsman or parties had a different hierarchy of norms—placing the more general above the more specific—there is no particular reason to follow lex specialis.
-“I.e.” is an abbreviation for the Latin words “id est,” which mean “that is.” “E.g.” is an abbreviation for the Latin words “exempli gratia,” which mean “for the sake of example.” Their effects differ dramatically. “I.e.” indicates that what follows is a paraphrase of the prior clause, while “e.g.” means what follows are examples of a broader covered category. “E.g.” implies an incomplete list—that other things in the category are intended.
– Reductio Ad Absurdum: (logical fallacy) can be used to disprove an argument by showing the absurdity of following it through to a logical conclusion; it points out the consequences of generalization [the point ‘proves nothing by proving too much’]; a proposition becomes untenable because it ultimately conflicts with another principle that is important to its proponent.
– Slippery Slope (aka “camel’s nose”) Fallacy: a “parade of horribles” – if we let him go there, then he’ll want to go there, and then onto there, and then over there, etc.
– The most effective strategy in response to a slippery slope argument is to distinguish cases: to explain why the case at hand is different from the parade of horribles your opponent has conjured. You should anticipate the parade of horribles and make clear at the outset that your principle is limited to a reasonable range of cases that includes the case at hand.
– The search for the ratio decidendi is guided by the principle of Occam’s razor, which suggests that the simplest explanation of a phenomenon—the one that requires the fewest assumptions or conditions—is likely to be the correct one. Occam’s razor is not a firm rule of logic, but a guide to decision-making under uncertainty.
– Arguing from Precedent — Point: You have broken the rule. Counterpoint: That rule is so tattered with exceptions that it no longer makes sense to apply it at all. Counter-counterpoint: The fact that there are exceptions shows that we are still serious about applying the rule (this is a case in which the exception may indeed prove the rule).
– Outside the law, we might say, again, “if it ain’t broke, don’t fix it.” This aphorism, if it has any meaning beyond the tautological, suggests that existing circumstances may be superior to alternatives for reasons that we are unable to observe without extensive analysis. We might even extend the aphorism with another: be careful to avoid “the cure that is worse than the disease.” Not every problem is worth solving, at least not yet. So, there are circumstances in life when it is best not to decide.
– Law professors sometimes make the following challenge to their students: “You let me control the facts, I’ll let you control the law, and I will always win.” The point is that every claim about the application of rules is dependent on the facts that support either compliance with or violation of the rules.
– Every legal claim is composed of a number of elements. Each of these elements is essentially dependent upon the appreciation of the facts in the case. In fact, this is the core of legal analysis: determine the elements of the claim, and then examine each element separately to determine whether each is satisfied.
– The art of reasoned persuasion is an iterative, recursive heuristic, meaning that we must go back and forth between the facts and the rules until we have a good fit. We cannot see the facts properly until we know what framework to place them into, and we cannot determine what framework to place them into until we see the basic contours of the facts.
– When an opponent avoids important facts and tries to shift focus to less relevant facts: call them out and say, “That is beside the point. Let’s get back to the point here.” Keep them on track – on your track. Create your own narrative and stick to it. Do not engage their narrative and do lot let them disengage your narrative.
– It is the advocate’s job to examine carefully the factual components of his opponent’s claim and to seek to cast doubt on how the facts are assembled to establish the opponent’s claim. What are the missing links between the different facts? Where is there doubt about the facts or about the reliability of the evidence for the facts? You can almost always find cracks in or around the facts no matter how true they appear. Look for the angles: look at the intention behind the claim, the approach, the premises, the conclusion, and the interpretation or analysis. There’s always a point where you can cast doubt.
– Circumstantial evidence is good evidence, but it is not by itself conclusive evidence. One of the essential functions of lawyers is to identify gaps like these in opponents’ narratives and to highlight them. It takes a careful, imaginative, and suspicious turn of mind to do it well.
– Causation of Harm and Negligence: Point: You caused harm to me. Counterpoint: i. My actions were only one factor—without the other factors, you would have experienced no harm. ii. My actions may have contributed to the harm, but the other factors were sufficient by themselves to cause you harm.
– The Best Evidence Rule — this rule of evidence should be understood also as a rule of argument: always use the most persuasive evidence available, which will ordinarily be that provided by primary resources.
– The Rule of Estoppel — Blocking Argument when one party accepts the other party’s claim as true and argues from it, and then the other party tries to argue against their original claim – the other party is blocked [or perhaps ‘estopped‘] from claiming new facts inconsistent with the earlier claim. Estoppel literally means to “bottle-up” or prevent, and it prevents parties from arguing or asserting certain facts.
– Abraham Lincoln, a great lawyer as well as a great president, was fond of asking, “If you call a tail a leg, how many legs does a dog have?”
– Formal logic, scientific method, and statistical analysis are all formidable defenses against rhetorical tricks.
– Non sequitur is a term for a whole class of circumstances where the asserted predicate does not indicate the desired conclusion, but the speaker acts as though it does.
– Non sequiturs are a way of focusing attention away from the salient facts and on a fact that may be true but is not salient.
– Ad hominem [personal] attacks are those that seek to discredit the source of information, without addressing whether the information is reliable or not.
– Be careful with rhetorical tricks that relate to statistics. Many times people use them in their arguments, and they can, in many ways, be misleading.
– Occam’s razor, otherwise known as the rule of parsimony, says we should not seek out complicated explanations when simple ones are available, provided that the simpler ones also account for the facts.
– In formal terms, Occam’s Razor holds that if there is an explanation of a phenomenon that requires fewer exceptions or assumptions than another, we should be drawn to the one that requires fewer. This is not always correct—the more complex explanation may indeed be the correct one—but the main point is that we do not have any reason to be attracted to the more complex explanation.
– In practical terms, despite the fact that guilt in a criminal case must be proven beyond a reasonable doubt, and the prosecutor always bears the burden of proof, we might say that the proponent of the more complex explanation of a phenomenon often informally or implicitly bears something like a burden of proof.
– If there’s a lot of good circumstantial evidence, and the defendant has a separate, arcane, and implausible explanation for each one, judges will implicitly ask whether it is possible that all these strange coincidences occurred in the same case.
– [Watch out for] Embedding Assumptions in Questions — Point: At what point did you decide to monopolize the market for personal computer operating systems? Counterpoint: I never decided to monopolize the market for personal computer operating systems, so I cannot answer the question as posed.
– In order to be a reasonable person, you should engage in a risk assessment of your acts. A full risk assessment would look like a risk-adjusted cost-benefit analysis, examining (a) the probability of the risk eventuating, (b) the magnitude of harm if the risk eventuates, (c) the benefits of the action that entails the risk, and (d) the availability and cost of less risky alternative measures.
– Point: Your action resulted in harm to me, and therefore you should compensate me. Counterpoint: I acted with the care of a “reasonable person,” and therefore I am not responsible for harms that ensued to you. Counter-counterpoint: Nevertheless, it is unfair to force me to bear the costs of your action.
– The core idea is that if you did your due diligence no one can criticize you for failure. This type of Reasonable Person Standard allows each of us to act and to feel confident that if we meet the reasonable person standard, we will not be subjected to effective criticism.
– Exceptional/Unforseeable Circumstances — Force majeure: It can be difficult to distinguish an exception from a rule. The exception may simply be another rule that conflicts with the first. As a result, much of legal argument is about the scope of applicability of rules—whether they were intended to apply to the case at hand.
– The legal doctrines of impossibility, impracticability, illegality, and frustration. “Impossibility” means that performance has become literally or practically impossible. “Impracticability” means that it is more practically impossible, or too costly. “Illegality” in this context means that the law, it turns out, prohibits the performance. “Frustration” means that the performance by the promisor is no longer useful to the promisee.
– Where we want maximum precision, our words should be like plumbing: there should be no leakage of meaning. There should be no room for our opponent to wiggle out of his commitments through extensional pruning.
– Lawyers are experts at using words with precision, and also at using words with ambiguity.
– For a lawyer, unless there is observable and admissible evidence of the existence of a thing or phenomenon, it does not exist.
– GET IT IN WRITING: The ancient Chinese saying states, “faintest ink over sharpest memory.”
– “Pessimism is only the name that men of weak nerve give to wisdom.” – Mark Twain
“It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so.” – Mark Twain. You must be careful about what you assume. Careful analysis requires careful scrutiny of underlying assumptions.
– In preparing for an argument, the careful lawyer will examine the opponent’s chain of syllogisms and determine the level of support for each link. Where there is a weak link of assumption without knowledge, the lawyer will exert pressure. (*Find and pressure the assumption.*) [Syllogism- a formal line of deductive reasoning in Logic; commonly the argument form when a conclusion is supported by two premises]
– Legal argument, dispassionate in nature, is based on reasoned persuasion, and the reasoning is based on the legal analytical technique. This analytical technique always involves determining what rules apply.
– In order to determine whether an action is consistent with precedent, we must determine the ratio decidendi—the essence—of the precedent. This is done by analyzing the precedents into “if-then” statements, determining the elements that were consistently required to be satisfied in the “if”component, and using those elements to decide the case at hand.
– Occam’s razor can help us figure out which elements were consistently required. Occam’s razor is also useful for evaluating facts, and suggests that we prefer the inference that requires the fewest assumptions—the one that is the simplest is the most likely.
– Lawyers learn to suppress their biases and reflexes in order to follow an appropriate procedure that will be reliable and that will be seen to be legitimate.
– Lawyers recognize that procedural justice is a real value, and that it can outweigh a sense of substantive justice. This recognition is essential to the rule of law and to a liberal society. [ I.e. the procedural nature of due process: if evidence of a crime is obtained in an illegal manner, no matter the nature of the crime and level of guilt, procedure must overrule the substance of the case. The procedural aspect here maintains the precedent of legally obtaining evidence in future cases. More harm would be done to the legal system, and to society in general, if illegally obtained evidence was deemed valid in a court. This would compromise the integrity of procedural law and set a new precedent for obtaining evidence illegally which, if allowed one time, should arguably be allowed at all times. ]