THE TOOLS OF ARGUMENT

Transcription

1 THE TOOLS OF ARGUMENT How the Best Lawyers Think, Argue, and Win JOEL P. TRACHTMAN

2 Contents Preface Introduction What Is Law? Why Is Law Important? What Is a Lawyer? The Work of the Lawyer Sophistry, Rhetoric, and Winning The Importance of Preparation The Power of Texts and the Incompleteness of Texts Legal Thinking The Heart of Legal Thinking: Analysis and Synthesis The Rules of Logic and the Rules of Inference Thinking like a (Social) Scientist How Do You Know? Legal Epistemology... 22

3 2.5 Thinking and Feeling like an Ethical Person: Procedural Justice and Substantive Justice Arguing in a Legal System: Procedure Argue About Arguing: Why Procedure Matters Argue for Procedural Benefit: To Win on Substance, Maximize Your Procedural Advantage Argue That It s None of the Tribunal s Business: There Is No Jurisdiction Argue That There Is Something Wrong with This Tribunal: Bias, Conflict of Interest, Recusal, and Voir Dire Argue for a Characterization of the Case That Makes Your Side More Appealing Argue for Application of the Rules That Will Result in Your Victory Argue That Your Opponent Is Wrong, Too: Counterclaims Argue That It s None of the Complainant s Business: Standing Argue That the Complainant Is Tainted: In Pari Delictus, Tu Quoque, Clean Hands, and Contributory Negligence Argue That It s Too Early: Ripeness and Exhaustion of Lesser Remedies Argue That It s Too Late: Statutes of Limitations, Prescription, and Repose Argue That Your Opponent Must Prove His Case Before You Must Prove Yours: Burdens of Proof Argue That Even If the Complainant Wins, He Deserves Nothing: Remedies and Enforcement Argue That It s Already Been Decided: Res Judicata,

4 Collateral Estoppel, Repose, and Double Jeopardy Argue That a Process Was Followed (or Flawed): Process Values Are Real Values Arguing About the Meaning of Texts: Interpretation Plain Meaning and the Dictionary Original Intent and Evolution Context, Purpose, and Principles Four Corners Versus Preparatory Materials: The Parol Evidence Rule Extensional Pruning Interpretation Versus Construction Interpretation and Morality Effet Utile, the Presumption of Consistent Usage, and Meaningful Variation Avoid Absurdity Lex Specialis: The Assumption That the Specific Trumps the General Expressio Unius (and Ejusdem Generis): Examples Matter Clear Statement Rules, Interpretation Against the Draftsman, and the Rule of Lenity Reductio Ad Absurdum, the Camel s Nose, the Slippery Slope, the Parade of Horribles, and the Thin Entering Wedge Arguing From Precedent Consistency and Law The Salience of Precedent Rationes Decidendi: The Essence of Decisions Obiter Dictum and Cheap Talk Exceptions that Swallow the Rule

5 5.6 Breaking Precedent Passive Virtues and Passive Aggression: Not to Decide Is to Decide Specificity and Delegation Citations, Footnotes, and the Pedigree of Information Arguing About Facts Determining the Salience of Facts Evidence and Missing Links Causation of Harm and Negligence Brandeis Briefs and Scientific Experts Quality of Evidence: The Best Evidence Rule Exclusion of Evidence Estoppel: Blocking Argument Presumptions: Shifting the Burden of Proof Rhetorical Tricks Non Sequitur: That Doesn t Follow Ad Hominem Arguments: Discrediting the Source Fallacies of Causation: Post Hoc Ergo Propter Hoc, Affirming the Consequent, Correlation Versus Causation, and Omitted Variable Bias Inappropriate Inference from Limited Data Occam s Razor and the Exception That Proves the Rule When Did You Stop Beating Your Wife? Embedding Assumptions in Questions Arguing About Substantive Responsibility The Reasonable Person and Due Diligence Exceptional Circumstances: Force Majeure Form Versus Substance

6 8.4 Law Versus Equity Rights Versus Duties: Noses Versus Fists Conflicting Values Who Knows What Lurks in the Minds of Lawyers? Being a Lawyer Means Never Wanting to Say You re Sorry Words, Words, Words: Context, Precision, and Wiggle Room Possession is Nine Tenths of the Law, and the Facetious Golden Rule Trees Falling in the Woods: The Importance of Observation and Evidence Oral Agreements are Not Worth the Paper They Are Printed On Who Knows What Evil Lurks in the Heart of Man? The Lawyer Knows Ass-u-me Makes an Ass of You and Me Credibility Counts: In Law and In Life Winning Arguments With Reasoned Persuasion Glossary