Whereas Step 8 dealt with persuading through emotional substance, Step 9 concerns persuading through logical reasoning and analysis based on legal authorities.258 You must show the legal sources at least permit the outcome you urge, and your opponent will do the same. If both sides raise equally valid legal arguments, the judge will decide the case on sources additional to the external legal sources (such as the judge's values, sense of justice, policy preferences, view of the judicial role, and an evaluation of the advocates' credibility). But you must still make a case on external legal sources to give the judge the opportunity to want to decide in your favor, since a judge's role involves deciding cases according to law.
To help you, Step 9 provides a 'workbench' or checklist of the kinds of legal arguments that practicing lawyers typically make. This workbench applies the framework Professor William Huhn developed in The Five Types of Legal Argument (2002). When using the workbench, follow 3 guidelines.
First, use a combination of the techniques. Huhn sees good legal arguments as 'cables' rather than 'chains':
'A chain is no stronger than its weakest link, because if any of the singly connected links should break, so too will the chain. In contrast, a cable's strength relies not on that of individual threads, but upon their cumulative strength as they are woven together. Legal arguments are often constructed as chains, but they tend to be more successful when they are cable-like.'259
So, to create a persuasive legal argument, think about each of the 5 kinds of legal argument and, if possible, use more than 1. For example:
'When the language of the statute is your way and the legislative history is opposed, stress the statute [text]; when the situation is reversed, stress the legislative history [intent]; when both are favorable, bear down on both—and when both are against you, talk about the 'essential purpose' of the legislation [policy].'260
We describe each kind of argument in the 'Thrust' and 'Parry' tables below.
Second, as well as building your own case, consider the counterarguments and think how you would respond. Thinking about the possible defects in your case will help to correct the natural bias you have to the merits of your own arguments.261For each kind of legal argument represented in the following tables as 'Thrust', consider the counterarguments represented as 'Parry'.
The tables divide the 'Thrust' and 'Parry' arguments into 2 types. Huhn calls the first type 'Intra-type' arguments. 'Intra-type' arguments involve 'Thrust' and 'Parry' arguments and counterarguments of the same type. For example, if you base your argument ('Thrust') on text and I base my counterargument ('Parry') also on text, then we have made intra-type arguments. The same applies if you base your argument on policy, and I base my counterargument also on policy, and so on.
The second type of 'Thrust' and 'Parry' involves 'cross-type' arguments. For example, you base your argument on text, and I base my counterargument on policy; or you base your argument on policy, and I base my counterargument on precedent, and so on.
As for the third guideline when using the workbench, follow the golden rule: tailor your arguments to your audience.262 Crucially, when you consider your choice of the workbench of legal techniques, know and think about the preferred jurisprudential approach of the judges you face, and consider adjusting your argument with that in mind.263
For example, in Australia, the late High Court Justice Lionel Murphy believed that slavishly following precedent constituted 'a doctrine eminently suitable for a nation overwhelmingly populated by sheep'.264 By contrast, the late Justice Frank Kitto believed judicial policy introduced 'deleterious foreign matter into the waters of the common law'.265 How would your choice of arguments from precedent and policy change according to which judge you faced?
258 See Michael R Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing: Theories and Strategies in Persuasive Writing(2002) at, for example, 94–5.
259 William N Eskridge and Philip P Frickey, 'Statutory Interpretation as Practical Reasoning' (1990) 42 Stanford Law Review 321, 351 quoted in William Huhn, The Five Types of Legal Argument (2002) 84–5.
260 Frederick Bernays Wiener, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 174.
261 See, for example, Ward Farnsworth, The Legal Analyst: A Toolkit for Thinking About the Law (2007) 238.
262 See the 'Further information' provided in our Introduction, above.
263 William Huhn, The Five Types of Legal Argument (2002) 192. See generally Thomas Michael McDonnell, 'Playing Beyond the Rules: A Realist and Rhetoric-Based Approach to Researching the Law and Solving Legal Problems' (1998) 67 UMKC Law Review 285.
264 Lionel Murphy, 'The Responsibility of Judges' in Gareth Evans, Law, Politics, and the Labour Movement (1980) 5.
265 Rootes v Shelton (1967) 116 CLR 383, 386–7.