II. Structure

Part A and Part B help you to find, collect, organize, and understand the information you need to solve a legal problem.

Part C helps you to communicate your solution persuasively.

For all Parts, you must view the Steps as interdependent (not linear).

Parts A and B of Win More Cases help you to get the information you need to build 2 kinds of arguments: 'motivating arguments' and 'justifying arguments'. Motivating arguments cause judges to want to reach your desired outcome.63 Motivating arguments rely more on facts and policy than rules.64 Justifying arguments rely on rules to show the law requires (or permits) the desired outcome.65

Lawyers must use both kinds of arguments to persuade judges because of the 'intractable dilemma of the judicial process'.66 People expect judges to follow the law, which means judges must rely on more than motivating arguments. But ambiguities in the law give judges choices, which means judges must rely on more than justifying arguments.67 As Lord Macmillan said: 'In almost every case, except the very plainest, it would be possible to decide the issue either way with reasonable legal justification.'68

To help you to make your justifying arguments and motivating arguments persuasive, the final Part of this Toolkit uses 3 persuasion tools. Many persuasion theories exist, in many fields.69 To keep the Toolkit simple, we have grouped a selection of persuasion techniques under 3 simple headings derived from classical rhetorical theory: logic, emotion, and credibility.70

We have designed each Step as an input for the next Step. For example, you will use facts you collect in Step 1 in your analysis in Step 2. But given the dynamic and reactive nature of legal problem-solving, often you must shuttle between Steps before completing a Step. So remember that you should view the searching, analytic, and application phases of the Toolkit not as linear but as interdependent. View each facet in the context of the others.71

63 Richard K Neumann Jr, Legal Reasoning and Legal Writing: Structure, Strategy, and Style (5th ed, 2005) 319.

64 Richard K Neumann Jr, Legal Reasoning and Legal Writing: Structure, Strategy, and Style (5th ed, 2005) 320.

65 Richard K Neumann Jr, Legal Reasoning and Legal Writing: Structure, Strategy, and Style (5th ed, 2005) 320.

66 Michael Coper, 'Interpreting the Constitution: A Handbook for Judges and Commentators' in AR Blackshield (ed), Legal Change: Essays in Honour of Julius Stone (1983) 52, 60 (in judicial decision-making, 'mere result-orientation is insufficient, yet the external sources are inconclusive. The inadequacy of mere result-orientation compels attention to an external standard, yet in a vicious and inescapable circle the inconclusiveness of that standard demands consideration of the most appropriate result'). See also Karl Llewellyn, The Common Law Tradition (1960, 1996 reprint) at, for example, 237–8.

67 Richard K Neumann Jr, Legal Reasoning and Legal Writing: Structure, Strategy, and Style (5th ed, 2005) 320–1.

68 Law and Other Things, 48, quoted in RWM Dias, 'The Value of a Value-Study of Law' (1965) 28 Modern Law Review 397, 397. See also Steven D Stark, Writing to Win: The Legal Writer (1999) 62; Maurice Byers, 'From the Other Side of the Bar Table: An Advocate's View of the Judiciary' (1987) 10 University of New South Wales Law Journal 179, 181.

69 For a good introduction, see Richard E Petty and John T Cacioppo, Attitudes and Persuasion: Classic and Contemporary Approaches (1996) and any of the works by social psychologist Robert Cialdini, such as Influence: Science and Practice (2001).

70 See, for example, Aristotle and JH Freese (ed), The Art of Rhetoric (1947) 17 ('[T]he proofs furnished by the speech are of three kinds. The first depends upon the moral character of the speaker [credibility], the second upon putting the hearing into a certain frame of mind [emotion], the third upon the speech itself, in so far as it proves or seems to prove [logic]').

71 Steven M Barkan, 'On Describing Legal Research' (1982) 80 Michigan Law Review 925; Margot Costanzo, Essential Legal Skills: Problem Solving (1995) 80, 117.

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