The Tools of Argument: How The Best Lawyers Think, Argue & Win Flashcards
Joel P. Trachtman
What is the definition of Law?
Laws are formal rules that carry sanctions of the State
What two (2) things does the existence of Laws allow us to do?
1) Security (killed, robbed, etc.)
2) Facilitate relationships in our increasingly complex society
“Law, like taxes, is the price of civilization”. -Judge Oliver Wendell Holmes
Point: You have done something wrong.
Counterpoint: The procedure that you propose to follow, or have followed, in determining that I have done something wrong is unfair or otherwise defective.
What type of argument is this?
What is a business example of this type of argument?
Procedural.
If a colleague invest in new operating equipment that you do not approve of, instead of attacking the investment itself, you can attack the decision-making procedure.
Did the appropriate officers of the company sign off?
Was a return on investment analysis completed beforehand?
Point: This tribunal will decide whether you have done something wrong.
Counterpoint: I deny the authority of this tribunal to make a determination about whether I have done something wrong.
Point: This tribunal will decide whether you have done something wrong.
Counterpoint: This tribunal has power over me, but is not the appropriate tribunal to decide this case.
What type of argument is this? On what four (4) grounds can you argue against a particular tribune?
Tribunal Argument.
One can argue that the tribune has a - Bias
- Conflict of interest
- Recusal
- Voir Dire (preliminary interrogation of interested parties)
Point: You have violated the rules.
Counterpoint: I may have violated that set of rules, considered alone, but when you consider another applicable set of rules, my action was permitted, or even required.
What type of argument is this?
Rules Argument.
Did the act fall under a specific set of rules, or multiple sets?
Example: Environmental laws, local ordinances, state laws, etc.
Point: You’ve wrongfully harmed me, and the damages are $100.
Counterpoint: That may be so, but you’ve harmed me too, and the damages are $150, so you owe me $50.
Counter-counterpoint: Let’s deal with the issue I’ve raised first, and they you can make your claim.
What type of argument is this?
Give an example.
Counterclaim Argument.
Company A accuses Company B of patent infringement. Company B then counterclaims that Company A has violated antitrust laws for monopolization.
Point: You’ve done something wrong.
Counterpoint: Who are you to complain? It’s not your concern.
Counter-counterpoint: I am trying to represent people who are injured but are not capable of representing themselves.
What type of argument is this?
Standing Argument.
Legal systems often limit the right to sue to certain people and so declare that these people have “standing”.
The rational of this principle is to prevent one joint wrongdoer from suing another for damages that resulted from their shared wrongdoing.
In pari delicto
Describe Tu Quoque
Point: You’ve done something wrong.
Counterpoint: Who are you to complain, you’re just as guilty.
is a discussion technique that intends to discredit the opponent’s argument by attacking the opponent’s own personal behavior and actions as being inconsistent with their argument, so that the opponent is hypocritical
What does it mean when a dispute is “not ripe”?
Give an example.
This means it is not a real dispute. In other words, no one has actually been harmed.
If your neighbor get a “mean” dog, and you believe it may hurt you or your children, you cannot sue unless the dog actually causes harm.
Point: You’ve done something that can harm me in the future.
Counterpoint: Let’s examine this if and when you are harmed.
Counter-counterpoint #1: Once I am harmed, it will be too late. Compensation won’t replace what I will lose, and I am not sure you will have the wherewithal to compensate me.
Counterpoint #2: Less formal means will be futile, and will simply operate to make my remedy more costly, and less prompt.
What types of argument are counterpoint #1 & #2?
Give an example of each.
1: Ripeness
#2: Exhaustion of lesser remedies
Point: Five years ago, you did something that harmed me.
Counterpoint: Wow, you should have said something then. In any event, it’s too late now, I don’t even remember that.
Counter-counterpoint: I only was injured by your act recently, and only learned about your harmful act after the injury. Before I know of the problem, I could not be expected to complain, and I should not be denied recourse now.
What types of arguments are these?
Statute of Limitations/Reprose Argument
Somewhere between lack of ripeness & expiration of the statute of limitations, the complainant has a chance to make a claim or complaint.
Point: I do not think you can prove you are right.
Counterpoint: But I do not think you can prove that I am wrong. Unless you can, I can go ahead and keep doing what I’m doing, because there is no prohibition of activity that is not proven wrong.
What type of argument is this?
Burden of Proof Argument
Point: This looks dangerous; prove that it is safe before we move forward.
Counterpoint: It’s not a problem; prove that it is unsafe before we stop.
Counter-counterpoint: Given the overall level of likelihood that this type of activity may be dangerous, and the magnitude of the harm that would occur if the danger eventuates, it is appropriate that the person proposing the action bear the prior burden of proving its safety, rather than to ask those who may be harmed to prove its danger.
What type of argument is this?
Burden of Proof Argument
