9. QUICK TIPS FOR MAKING LEGAL ARGUMENTS

I. INTRODUCTION

The last portion of the course focuses on the student's ability to draft legal motions and an appellate brief. To draft either of these well, the student will need to learn how to make legal arguments. And to make legal arguments, it is necessary for one to conduct legal research.

I know that this is NOT a legal RESEARCH course; it is an introductory WRITING for the law course. To be sure, some types of legal writing require legal research skills (such as motions and briefs), but (as we have seen) many types of legal writing do not. Consequently, it is the belief of your professor that, for this course, you will need to develop and demonstrate SOME basic legal research proficiency, as well as some proficiency in presenting well-constructed legal arguments. But at the end of the day, it will be your writing ability (as distinguished from your researching or arguing abilities) that will primarily determine how well you do in the second half of the course.

Legal disputes generally come in two forms: (a) factual disagreements, where the various parties disagree concerning how/when/what actually happened, and (b) legal disagreements, where the various parties disagree as to what the legal ramifications of the facts are.

For example, in a slip-and-fall case, the parties may disagree FACTUALLY as to whether there was any ice on the defendant's sidewalk; and/or they may disagree LEGALLY as to whether the defendant had a legal duty to remove any ice that may have been there.

This page concerns dealing with the latter - what tools does one have available for making LEGAL arguments?

II. INTRODUCTION TO CONDUCTING LEGAL RESEARCH

We will go over this in class.

III. TOOLS FOR MAKING LEGAL ARGUMENTS

A. Step 1: Identify the area/s where there is a legal dispute, and do your best to characterize it. For example, do the parties disagree about a tort issue or a contract issue? Is the dispute about a claim or a defense? Etc. EXAMPLE: R. v. Dudley & Stephens

B. Step 2: Look for PRECEDENT.

1. Similar cases. Are there any cases which are EXACTLY like your case? If not, you will need to determine what are the essential elements of your case, and find a case that is similar. Experiment using your access to WESTLAWNEXT and see what you can come up with.

2. Are there any governing STATUTES?

a. If so, those may be helpful or even determinative of the results in your case. Peruse the governing laws of your state (either by scanning through the index, or by looking at tables of contents) to see if you can find something helpful.

b. Sometimes it may help to look at the legislative history. Why was the law drafted? For unemployment cases, for example, the history states that the law was created to help unemployed people by providing them with some economic assistance. Thus, if a case is close, the history might suggest that granting of benefits is favored over denying them. [EXAMPLE: Should surreptitious filming of a consensual act be found to violate a law that was enacted to prevent improper use of camera phones?]

3. Are there any logical holes in the opponents arguments? For example ...

4. What if the precedent is against your side of the story, and you can't find anything similar that is helpful?

a. Is there any AMBIGUITY in the law that would help you DISTINGUISH your case from the precedent?

b. Is there some type of policy reason you can come up with as to why the Court should disregard precedent and establish new law? Remember: "separate but equal" was the law of the land, until the Court system decided for policy reasons that it wasn't.