LEGAL REASONING

AND LEGAL METHODOLOGIES

Questions:

1. WHY WE SHOULD STUDY LEGAL REASONING?

Legal reasoning in broad sense is the psychological proccesses undergone
by the judges in reaching decision in the cases before them. A study of legal
reasoning in the broad sense would be a study of judicial psychology and
biography, which is important and interesting in its ownright.

To know the judges and their spychology.

To understand what impact judges’ decisions.

Legal reasoning in narrow sense is the argument that judge give, frequently in
written form, is support of the decision they render. Thefore, The study of legal
reasoning in the narrow sense is an inquiry into the “logic” of judicial decision
making. It concerns the kinds of arguments judges give, the relationship between the
reasons and the decisions, the adequacy of these reasons as support for the decisions
and applying this knowledge in one’s career.

2. WHAT IS THE IRAC FORMULA IN LEGAL REASONING?

The IRAC formula in legal reasoning is:

- Issue: what facts and circumstances brought these parties to the court (the
syllogism’s subject matter)

“The facts of a case suggest an issue”

+ The key to issue spotting is being able to indentify which facts raise which issues.

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+ The elimination or addition of one fact (such as time of day ...) can eliminate
or add issues to a case thereby raising an entirely different rule of law.

- Rule: what is the governing law for the issue (the syllogism’s major premise)

+ The rule is the law.

+ The rule could be common law (that was developed by the courts) or a statutory
law that was passed by the legislature.

+ The overall question regarding the discover of rules is that what elements of the
rule must be proven in order for the rule to hold true.

Each of the logical pieces composed of the rule is called elements of the rule.

*Cite the rule: The law is based on existing rules. An argument has no weight unless
it says exactly which rule is being relied upon.

- Analysis: Does the rule apply to these unique facts (the syllogism’s minor
premise)

“compare the facts to the rule to form the analysis”

+ There are lots of facts that make up the client’s story. For the purpose of legal
analysis, we look for “material” facts. These are facts that fit the elements of the
rule.

+ For every relevant fact:

. It is necessary to ask whether the fact helps to prove or disprove the rule.

. If a rule requires that a certain circumstance is present in order for the rule to
apply the absence of that circumstance helps us reach the conclusion that the rule
does not apply.

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(Nếu quy tắc yêu cầu phải có một tình huống nhất định để quy tắc áp dụng thì
việc không có hoàn cảnh đó sẽ giúp chúng tôi đi đến kết luận rằng quy tắc đó
không áp dụng.)

- Conclusion: How does the court’s holding modify the rule of law (the
syllogism’s conclusion)

+ The conclusion is the shortest part of equation.

+ It can be simple “yes” or “no” as to whether the rule applies to a set of facts.

3. HOW TO SUMMARY A CASE?

Bear in mind that the busy law-trained reader will value conciseness, so try to present
only those facts that are legally significant or that are necessary to make the problem
clear.

The case summary should always contain a full and coherent recitation of the
relevant facts, whether or not the principal reader of the memo already knows them
(unless, of course, you were instructed to do otherwise).

In your case summary, be sure to specify what legal claims are being considered or
are being brought, and be sure to describe any legal proceedings that have already
taken place.

5 things I will do to summary a case law:

1. Set out your heading: “case name and citation” in bold, capital letters
2. Sub-headings: set out the headings for: legal question, Facts, Arguments, Decision
and Reasoning in bold, lowercase letters
3. First find the legal question and type it out next to your sub-heading
4. Find the facts, arguments, reasoning and decision of the case and type it out under
the relevant sub-heading in a bullet point list.

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5. If the judge made any important remarks or something is mentioned about the
case in class that is noteworthy, and it doesn’t fit under any of the subheadings,
simply type it out below the summary in a different font or colour so that it stands
out from the main points of your case.

4. HOW TO DEFINE LAW APPLIED IN A CASE?

We need to know the statutes and regulations that apply to our case.

Then, we need to try to find a case or cases from the past with facts and legal issues
similar to our case and look at their outcomes and how the courts applied and
interpreted the relevant statutes and regulations to the facts in those cases.

A lawyer spends a lot of time trying to find a case that is "on point," or as close to
his or her fact situation as possible.

It is usually quite difficult to determine what "the law" is for any given legal issue.
Often, we need to compare many different cases to the specific facts in our case to
figure out what the law that applies to our case really is.

5. WHAT ARE THE QUESTIONS TO ASK WHEN READING A CASE?

- Why am I reading this text?

- What do I hope to get out of it?

* Prediction of use and content of text:

- This involves a consideration of what the writer is saying. This can be judged from
the subject matter and the title.

- The very act of choosing a text involves prediction; that the text is relevant and
answer questions that you have in your mind.

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6. HOW DO YOU PREPARE AN ORAL ARGUMENT?

- Prepare two versions of the same presentation.

- One version should include the material that you must argue – in other words, the
core of your case – and, when delivered without interruption, it should fill no more
than 30 to 35% of the time you are allowed.

- The other version is an expanded development of the first. It includes the first
version, as well as supplemental material that makes the core of your case more
persuasive, able time.

- You will know within the first three or four minutes of the argument whether the
bench is hot or cold. If it is hot, you can deliver the core presentation and work the
supplemental material into your answers. If the bench is cold, you can deliver the
expanded argument.

- Plan your argument by weaving together policy, the facts, and the controlling rules
of law into a seamless theory.

- Make a list of every weakness in your case and every question that you would
therefore ask if you were a judge, and prepare an answer to each of those questions.

- Try also to predict which concessions you will be asked to make. Figure out which
concessions you cannot afford to make and which you will have to make in order to
protect the reasonability of the rest of your case.

- Practice making your argument to a person who will ask tough questions but who
knows little about your theory of appeal.

- There are a number of ways to prepare notes for you to use at the lectern. After
many arguments, you will eventually discover the type and style of notes that work
best for you.

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7. WHAT ARE DEDUCTIVE ARGUMENTS?

Deductive reasoning begins with a general proposition and ends with either a
general or particular proposition.

+ Deductive reasoning begins with a general proposition and ends with a general
proposition (this “general-to-general” reasoning is not used in legal context).

Example:

Premise one: All mammals are warm blooded

Premise two: All dogs are mammals

Conclusion: Therefore, all dogs are warm blooded

+ Deductive reasoning begins with a general proposition and ends with a

particular proposition (“categorial syllogism”)

Example:

Major Premise: All mammals are warm blooded

Minor Premise: Dog Fido is a mammal

Conclusion: Therefore, Fido is a warm blooded

8. WHAT ARE INDUCTIVE ARGUMENTS?

Inductive reasoning begins with a particular proposition and ends with either a
general or particular proposition.

+ Inductive reasoning begins with a particular proposition and ends with a general
proposition (reasoning by generalization): Create appellate case legal principles

(This type of arguments is popularly used in the common law system. In Vietnam,
due to the features of continental law system which is characterized by written law,
this type of arguments is not popular.)

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+ Inductive reasoning begins with a particular propositon and ends with a
particular proposition (reasoning by analogy): Select relevant legal principles to
be applied.

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9. WHAT IS PREDICTIVE WRITING?

Predictive writing also known as objective writing with two purposes consist of
advising clients and planing litigation. It is the most common type of predictive
in legal analysis

Functions of predictive writing:

• Predicts the outcome of a legal question by analyzing the authorities

governing the question and the relevant facts that gave rise to the legal
question
• Explains and applies the authorities in predicting an outcome, and ends with
advice and recommendations
• Serves as record of the research done for a given legal question

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10.WHAT IS PERSUASIVE WRITING?

The persuasive writing is written to convince the reader that the writer's opinion is
correct with regard to an issue.

Persuasive writing is the most rhetorically stylized and framed as an argument.

The reader argues for one approach to resolving the legal matter and does not
present a neutral analysis.

Functions of persuasive writing

• Submit to the deciding authority (Judges, mediator, arbitrator,..) to persuade

them to decide the case favorably for the writer’s client
• to persuade the dispute's opposing party.

What are characteristics of legal language?

Frequent use of ordinary words with specialized meaning (law suit)

Frequent use of Latin words and phrases as terms of art (mens rea –guilty mind, fee
simple – Inheritance entitled absolutely and unlimited to any class of heirs, ratio:
reason for the decision)

Frequent use of Norman French (chose in action)

Claims that words can be used with precision

Ritualized (ritual: mang tính lễ nghi) word forms (the truth, the whole truth and
nothing but the truth)

Use of words with flexible meanings (reasonable)

- Skills required for legal reasoning study consist of 4 skills:

• Critical thinking skills

• General and specific language skills

• Intellectual and technical skills

• Argument construction

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11.WHAT IS THE DIFFERENCE BETWEEN PREDICTIVE AND
PERSUASIVE WRITING?

Predictive writing Persuasive writing

Predicts the likely outcome of a client's Persuades the reader that the writer's
claim or answer based on an analysis of the opinion is correct with regard to an issue
applicable law and cases
Purpose: to advise clients and to plan Purpose: Submit to the deciding authority
litigation (and sometimes even the opposing party) to
persuade them to decide the case favorably
for the writer’s client
Objective. Not objective

The tone, word choice, sentence structure, organization, and emphasis in predictive
and persuasive writing differ greatly:

• Predictive writing uses neutral language while persuasive writing uses loaded
words to appeal to a reader's reason or emotion.
• Predictive writing present the facts in a balanced fashion, while persuasive
writing often plays up the facts important to the client's position and plays
down facts that are less favorable.
• Predictive writing discusses all sides of an issue while persuasive writing
emphasizes the arguments that support the client's position and distinguishes
all other arguments.

12.HOW TO READ TEXTS ABOUT LAW EFFECTIVELY?

First, we have to prepare prior to reading: finding the locating texts and
ascertaining purpose for reading (Why I am reading this text? And What do I
hope to get out of it?)

• Prediction of use and content of text:

- This involves a consideration of what the writer is saying. This can be
judged from the subject matter and the title.
- The very act of choosing a text involves prediction; that the text is
relevant and answer questions that you have in your mind.

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Second, using the suitable methods of reading (skimming, scanning,
close/detailed)

Third, you have to understand what is being read

• Guessing words that you do not know

• Identifying main ideas: Many main ideas will have been discovered on a
first skimming.
• Identifying subsidiary ideas: As the main points are identified, it is possible
to organize the information and classify secondary, subsidiary points.
• Identifying overall text organization: Every writer has a different way of
organizing, classifying and structuring their work. This needs to be
ascertained by any reader who wishes to break into the text successfully.
• Identifying whether the writer is outlining an area:
- Discussing a specific problem.
- Proposing a solution to a problem.
- Comparing and contrasting ideas.
- Speaking of the present, future or the past.

Finally, after reading we have to evaluating what you are reading

13.WHAT ARE METHODS OF READING TEXTS ABOUT LAW?

1. Skimming (Đọc lướt): read very quickly and generally through a text noting.

- Publication date ( Ngày xuất bản)

- Index (Mục lục)

- Any headings and sub-headings (Tiêu đề - phụ đề)

- Author details (Chi tiết về tác giả)

- Introductory paragraphs (Đoạn văn giới thiệu)

- The first sentence or two of paragraphs following introductions (Câu đầu tiên hoặc
hai trong số đoạn văn sau phần giới thiệu)

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- Look at concluding paragraphs: (Phần kết luận) This activity assists in deciding the
potential relevance of the text.

2. Scanning (Quét): scanning involves quickly looking for specific words,

phrases or information.
3. In-depth focused reading (Đọc chuyên sâu)
• Reading will allow attention to be given to secondary or subsidiary points in
the text.
• The reading is slower and careful.
• Check unfamiliar vocabulary.
• Some words and phrases become clear as more text is read.

14.HOW TO EVALUATE WHAT YOU ARE READING?

+ Ascertaining the purpose of the writer (Xác định mục đích người viết)

• This is crucial (quan trọng)

• Does the writer want to inform you about something or try to persuade you
of the correctness of a particular point of view?
• Often a writer will seek to both inform and persuade.

+ Ascertaining the argument(s) of the writer (Xác định cách lập luận người viết)
stand-alone argument or complex argument.

Some texts are complex because we need to understand the full detail of the writer’s
position, extensive knowledge of the other areas within or outside the particular
discipline will be required.

+ Ascertaining the attitude of the writer (Xác định thái độ người viết)

• Writers are usually biased (có khuynh hướng) towards a certain view in their
writing, although on occasion a writer may be neutral (trung lập).
• You must be able to gain skill in identifying a writer’s attitude to the ideas
he or she is discussing.
• You must at least know whether the writer is neutral or biased.

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15.WHAT IS LEGAL ARGUMENT?

-Legal argument is a series of statements, some backed by evidence, some not, which
are purposely presented in order to prove, or disprove, a given position.

It consists of two statements, of which one (the premise) is claimed to be a reason

for accepting the other (the conclusion). Sometimes the term “argument” is used to
refer only to the reason or set of reasons for a particular statement.

16.WHAT ARE SKILLS FOR ARGUMENT?

• Competent identification of nature of the problem (xác định bản chất vấn đề)
• Competent location of potentially relevant: (Tìm văn bản có khả năng liên
quan)
- Legal rules (Điều luật quy định)
- Secondary text (Văn bản phụ)
• Competent reading, summarizing and evaluation of relevant texts (Đọc, tóm
tắt và đánh giá văn bản liên quan)
• The drafting of potential solutions (Soạn thảo giải pháp tiềm năng)
• Competent re-evaluation of problems and solutions (Đánh giá lại các vấn đề
giải pháp)
• Reflection as to conclusion (Suy nghĩ về kết luận)

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17.WHAT IS THE STRUCTURE OF AN ORAL ARGUMENT?

1. Opening Statement

• The first opportunity to outline the evidence to the bench. (phác thảo bằng chứng
trước tòa)
• Giving an overview - the big picture of the case:

Oral testimony (lời khai) is normally presented during trial by a number of different
witnesses (nhân chứng) in a question-and-answer format → difficult for the judge
or jury to follow → easily get lost in the details and miss the overall story.

2. Developing argument

- Usually, the body of the argument begins most effectively with a statement of the
rule or rules on which your conclusion rests.

(Thông thường, phần thân của lập luận bắt đầu hiệu quả nhất với một tuyên bố về
quy tắc hoặc các quy tắc mà kết luận của bạn nằm ở đó).

- If two or more separate conclusion are being urged, the transition form one to
another should be clear to the listener.

(- Nếu hai hoặc nhiều kết luận riêng biệt đang được thúc giục, thì hình thức chuyển
đổi từ kết luận này sang hình thức khác phải rõ ràng cho người nghe.)

3. Closing agrument

- The opportunity to tell the bench why this particular party should win.

Closing argument gives the valuable chance to help the bench fit the pieces together
and to convince them that the evidence presented at trial proves you should win.

18.WHAT ARE DIFFERENCES BETWEEN WRITTEN AND ORAL

ARGUMENT?

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 Criteria Oral argument Written argument
One-way passive
Multiple-way active
Nature communication.
communication
- Overall goals area the
same
Goals Use of personal pronouns
- Specific goals are
different?
Language More general More professional
- Overview
- Not detailed
Content (determinative points) Detailed
- Respond to the
questions
- Body language
- Facial expression (eye
Supportive means to contacts)
Not available
persuade - Tones
- Attitude
- Appearance (clothing)
Evidence of the
Hard to access Available/easily to access
argument
Flexibility Higher Lower

Re-check Impossible Possible

19. What is a memorandum?

A memorandum, in general, is a brief writing, note, summary or outline. It is an informal
record or outline of something which may or may not be detailed later.

A "memorandum of law" may be prepared by an attorney to support a legal argument,

which is similar to a brief but with less attention to legal writing formalities.

It contains legal arguments based upon the lawyer’s understanding of the law applicable
to the issues and is often supported by citations to legal authority.

20. What is a question presented?

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The Question presented defines the issue that the memorandum is intended to resolve.

The question presented states the question(s) the memo is to address: how does the relevant
law apply to the key facts of the research problem? The question should be sufficiently
narrow and should be objective.

The Question Presented is usually one sentence. It often begins: "Whether...." or"Does....”.
Although questions are usually framed so that they can be answered yes

21. HOW TO EVALUATE YOUR QUESTIONS PRESENTED FOR

PERSUASIVENESS?

- The issue must be stated in terms of the facts of the case.

- The statement must be eliminated of all unnecessary detail.
- It must be readily comprehensible on first reading.
- It must eschew (omit) self-evident (obvious) conclusion.
- It should be stated that the opponent has no choice but to accept it as an
accurate statement of the question.
- It should be subtly persuasive.

23. PRIMARY AND SECONDARY SOURCES

Primary sources: are original sources of information

Primary sources = law generated by a governmental body or cases

– Primary sources can be either mandatory (binding) or persuasive.

- The researcher is always looking for primary sources which are mandatory

- To explain how major events are related to each other in time.

- To think critically and distinguish between facts and opinions.

- To develop your own conclusions and analyze how historical events affect relevant
parties.

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- Secondary sources: may be written by lawyers or judges or other legal
professionals which comment on the law, categorize the law or otherwise interpret
the primary sources.

Secondary sources: summarize, analyze, or critique primary sources. Secondary

sources are always persuasive authority

- To get expert opinions in order to evaluate what really happened.

- To gain insight by examining the same event from different perspectives.

- To form your own opinion.

- To save time by reading information collected from a number of different sources.

Strength Weakness
Primary sources High accuracy Time consuming
Hard to find
Secondary sources Ease of access Quality of research
Low cost to acquire Not specific to your
Clarification of needs
research question Incomplete
May answer your own information
research question Not timely

24. TRUE OR FALSE STATEMENTS (EXPLANATION NEEDED)

a) The facts of a case suggest an issue

- True
- The key to issue spotting is being able to identify which facts raise which
issues.
- Because of the complexity of the law, the elimination or addition of one fact
can eliminate or add issues to a case thereby raising an entirely different rule
of law.
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 - The easiest way to isolate the issue is to merely look at the chapter headings
of the cases
b) Critical thinking is the only skills necessary for the study of legal reasoning
- False
- Skills required for legal reasoning study consist of 4 skills:
• Critical thinking skills
• General and specific language skills
• Intellectual and technical skills
• Argument construction

25.TRUE OR FALSE STATEMENTS (EXPLANATION NEEDED)

a) In the narrow sense, legal reasoning is the arguments that judge give,
frequently in written form, in support of the decisions they render.
- True
- Arguments consist of:
• Reasons for the decisions
• Justifications for the decisions
- The study of legal reasoning in the narrow sense of judicial decision making:
• Kinds of arguments judges give
• The relationship between the reasons and the decisions, the adequacy
of these reasons as support for the decisions
b) A thesis statement is a sentence (or two) that states what you are going to do
in your essay.
- True
- A thesis statement is not always one sentence; the length of the thesis depends
on the depth of the essay.
- Some essays may require more than a single sentence.
- However, the statement should be as clear and concise as possible in the final
draft of the essay.

Topic for discussion:

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1. CRITICAL THIKING SKILLS
Critical thinking skills include:

- Reasoning logically

- The ability to locate underlying assumptions (searching for hidden assumptions;

justifying your own assumptions; judging the rationality of those assumptions;
testing the accuracy of those assumptions).

- Analytic and argument skills.

2. PREDICTIVE WRITING
2 purposes: - to advise cliens

- to plain litigation

The legal memorandum is the most common type of predictive

legal analysis. It may include the client letter or legal

opinion.

* Functions of predictive writing:

- Predicts the outcome of a legal question by analyzing the authorities governing the
question and the relevant facts that gave rise to the legal question.

- Explains and applies the authorities in predicting an outcome, and ends with advice
and recommendations.

- Serves as record of the research done for a given legal question.

3. PERSUASIVE WRITING

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Persuasive writing is the most rhetorically stylized. It is framed as an argument. It
argues for one approach to resolving the legal matter and does not present a
neutral analysis.

* Functions of persuasive writing:

- To persuade a deciding authority to favorably decide the dispute for the

author's client usually submitted to judges (but also to mediators, arbitrators, and
others)

- To persuade the dispute's opposing party.

4. ROLE OF LANGUAGE IN LEGAL PROFESSION

Language is a professional tool in legal profession. If your reader’s/listener’s
attention is drawn to the obscurities and other faults in your writing/presentation,
you and your client will suffer for several reasons.

- First, the typical reader begins to resist and may not finish reading

because lawyers and judges are busy people who do not have time wade through
difficult writing.

- Second, the reader is tempted to consider you unreliable/

unprofessional because mediocre use of the language implies general mediocrity as

a lawyer.

- Third, the busy reader may misunderstand what you are trying to

say. Legal writing should give the viewer a quick and clear view, without
distractions, of the idea behind it.

5. PRIMARY AND SECONDARY SOURCES

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Why should we use primary sources?

- To explain how major events are related to each other in time.

- To think critically and distinguish between facts and opinions.

- To develop your own conclusions and analyze how historical events

affect relevant parties.

Why should we use secondary sources?

- To get expert opinions in order to evaluate what really happened.

- To gain insight by examining the same event from different

perspectives.

- To form your own opinion.

- To save time by reading information collected from a number of different sources.

Primary source Secondary source

- Created at the time of an event, or - Created after event; sometimes a
very soon after. long time after something
- Created by someone who saw or happened.
heard an event themselves. - Expresses an opinion or
an argument about a past
event.
- Often uses primary sources as
examples.

Strength Weakness
Primary sources High accuracy Time consuming

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 Hard to find
Secondary sources Ease of access Quality of research
Low cost to acquire Not specific to your
Clarification of needs
research question Incomplete
May answer your own information
research question Not timely

* Summing up:

It is important to determine the type of information you are looking at.

– Primary sources are original sources of information

– Secondary sources summarize, analyze, or critique primary sources

– Both primary and secondary sources can be good sources of information, but you
need to critically evaluate them.

* In legal research, legal reasoning:

- Primary sources = law generated by a governmental body or cases.

- Secondary sources: other resources which may be written by lawyers or judges

or other legal professionals which comment on the law, categorize the law or
otherwise interpret the primary sources.

* In legal research:

- Primary sources can be either mandatory (binding) or persuasive.

- Secondary sources are always persuasive authority.

- The researcher is always looking for primary sources which are mandatory.

7. Types of argument

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Deductive Arguments Inductive Arguments
(Lập luận suy luận) (Lập luận quy nạp)
Deductive reasoning begins with a Inductive reasoning begins with a
general proposition and ends with particular proposition and ends either
either a general or particular a general or particular proposition.
proposition. Reasoning by Reasoning by
General to categorial generalization analogy
general syllogism Inductive Inductive
reasoning (general-to- reasoning begins reasoning begins
particular with a with a
reasoning) particular particular
Deductive Deductive proposition and proposition and
reasoning begins reasoning begins ends with a ends with a
with a with a general particular
general general proposition proposition
proposition and proposition and
ends with a ends with a
general particular
proposition (this proposition
“general-to- (“categorial
general” syllogism”)
reasoning is not (Thuyết phân
used in legal loại)
context).

8. Types of argument in legal profession

DEDUCTIVE From general to general From general to

ARGUMENTS particular (categorial
(Không được sử dụng) syllogism)

Applies legal principles

to a
particular case

INDUCTIVE From particular to From particular to

ARGUMENTS general particular
(generalization) (analogy)

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 Create appellate case
legal principles Select relevant legal
(This type of arguments is principles
popularly used in the to be applied.
common law system. In
Vietnam, due to the
features of continental
law system which is
characterized by written
law, this type of
arguments is not popular.)

9. IRAC formula in legal argument

Issue what facts and circumstances brought

these
parties to the court (the syllogism’s
subject
matter)
Rule what is the governing law for the issue
(the syllogism’s major premise)

Analysis Does the rule apply to these unique facts

(the syllogism’s minor premise)

Conclusion How does the court’s holding modify

the rule of law (the syllogism’s
conclusion)

10.Effective oral argument

1. To engage the judge’s attention by getting them interested in the case and
motivated to rule in your favour.

2. To focus the judge’s attention on the few aspects of the case that are most
determinative.

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3. To access to the court’s thinking

11.Writing memoranda

- What is memoranda ?
• A memorandum, in general, is a brief writing, note, summary or outline.
It is an informal record or outline of something which may or may not
be detailed later.
• A "memorandum of law" may be prepared by an attorney to support a
legal argument, which is similar to a brief but with less attention to legal
writing formalities.
• It contains legal arguments based upon the lawyer’s understanding of
the law applicable to the issues and is often supported by citations to
legal authority
- A memorandum need:
• Each paragraph contains one main idea or point.
• A paragraph can be one sentence long.
• Arrange points in a logical sequence
- Structure of memorandum ?
Structure of a memo
Part 1: HEADER

TO: provide the names and titles of everyone who will receive your memo

FROM: provide your complete name and title

DATE: provide the complete and accurate date – don’t forget to include the
year

SUBJECT: provide a brief, yet specific description of what the memo is

about

Part 2: MESSAGE

Introduction – explain the purpose

Body – addresses the information required

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 Conclusion – (Summary and possible recommendations)

- Example:

12. Fact statements: persuasive

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 - The persuasive writing is written to convince the reader that the writer's
opinion is correct with regard to an issue.
- Persuasive writing:
• the most rhetorically stylized
• framed as an argument
• argues for one approach to resolving the legal matter and does not
present a neutral analysis
- Functions of persuasive writing
• To persuade a deciding authority to favorably decide the dispute for the
author's client
usually submitted to judges (but also to mediators, arbitrators, and
others)
• To persuade the dispute's opposing party.
13.Question presented: persuasive

- Define the purpose of persuasion

- List the necessary information in a certain order
- Prepare specific photos, videos, documents, and documents to illustrate proof
- Deploy the presentation steps, especially the opening content and close.
14. Appellate practice

- Appellate practice is a distinct discipline – a “last chance” to undo an

unfavorable judgment or to preserve a hard-fought victory.
- SGR represents clients in appeals before the United States Supreme Court and
federal and state appellate courts across the country.
- Appellate practice entails presenting cases for the second hearing in an
attempt to overturn a ruling or get a more lenient sentence. Appellate lawyers
come into play when an accused party wants to challenge the outcome at a
higher-level court.
- 15. Writing the appellate brief
- What is the appellate brief ?
• The brief or memorandum establishes the legal argument for the party,
explaining why the reviewing court should affirm or reverse the lower
court's judgment based on legal precedent and citations to the
controlling cases or statutory law.
- How to write the appellate brief

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a) Frame the issue to maximize the persuasiveness of your argument
• One of the most important aspects of writing an outstanding appellate
brief is to frame the issue (or question presented) in a manner that
makes the court want to rule in your favor. Of course, when framing the
issue, do not be dishonest or hyperbolic.
• Instead, carefully present the issue so that it supports the remedy you
seek.
• For example, assume that you represent a client who suffered injuries
after slipping on ice in the parking lot of a Whole Foods supermarket
and the lower court dismissed your case via summary judgment.
b) Simplify the issue and argument
• Regardless of the complexity of a case, attorneys should always try to
simplify the issue and arguments for the court, and thus present them in
an understandable and relatable manner.
• Judges (and clerks) are extremely busy; they read many briefs, some of
which are quite voluminous, and will appreciate – and thus think
favorably of – attorneys who present the issue and arguments in a clear
and straightforward manner.

c) Have an outstanding introduction

• An outstanding introduction sets the tone for the entire brief. If you
impress and persuade the court at the beginning of your brief, you will
make an excellent first impression, gain credibility, and enhance the
persuasive value of your arguments. To draft an outstanding
introduction, include the following:
Ø Draft a powerful opening sentence that explains why you should
prevail
Ø Tell the court exactly what you want (i.e., the remedy you seek)
Ø Briefly present the most persuasive facts and legal authority that
support your position
Ø Include a theme that connects all of your arguments
Ø Finally, in the introduction, tell the court what you are going to
say in your brief and thus provide the court with a roadmap of
your legal argument.
d) Tell a story

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 • Boring briefs, like boring books or movies, will not persuade your
audience (the judges).
• Like everyone else, judges appreciate and will view favorably briefs
that use narrative techniques to describe the characters, the setting, and
the theme.
• In so doing, you give context to your arguments, humanize your clients,
and provide the court with a realistic portrait of the facts. In other
words, don’t simply recite the relevant facts and law.
• Tell a good story.
• Otherwise, judges may merely skim your brief. When that happens,
your chances of succeeding diminish substantially.
e) Don’t argue the facts (unless absolutely necessary)
• Appellate judges defer to the lower court’s factual findings – and for
good reason. The lower court is in the best position to evaluate the
evidence and make an informed decision regarding the facts.
• Thus, in your brief, do not argue the facts unless your issue involves a
factual determination. But that should be the exception, not the rule.
• The most successful appellate briefs typically focus on attacking an
issue of law, not fact.
f) Only present strong legal arguments
• Be selective regarding the legal arguments that you include in your
brief. Weak arguments detract from the credibility of your brief and the
strength of your arguments.
• Thus, do not “throw in the kitchen sink” and hope that the court will
support one of your arguments.
• For the same reason, be careful about arguing in the alternative.
• If you do, make sure that your alternative argument is sufficiently
strong to merit inclusion in the brief.
g) Write, re-write, and edit your brief
• Appellate briefs should be well-written and avoid the common mistakes
that are characteristic of poor writing. For example, don’t be repetitive.
Avoid block quotes.
• Don’t use over-the-top language, or attack your adversary or the lower
court. Avoid long sentences and long paragraphs. Delete complex or
esoteric words.
• Make sure that your brief is well-organized and flows logically.

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• And remember that, no matter how strong your legal arguments, bad
writing will detract from the persuasiveness of those arguments, which
can result in losing the appeal.

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