how does a lawyer used fact centered arguments

apply the law to the facts structure your answer clearly and logically (use the model plan) use appropriate language for a legal argument. Identify relevant legal issues and apply the law to the facts

Full Answer

How do lawyers argue a court case?

How Lawyers Argue a Court Case: “The Phrases of The Complete Lawyer”. The word “argument” engenders visions of debate, the heat and fury of positions attacked and defended strongly, though with words. That may happen of course, in today’s litigation, but generally the arguments which win cases are not replete with drama, sound or fury.

What is the argument from law-making?

So the argument from law-making, when distinct from arguments from replicability and equality, is an argument for the power to overrule, rather than an argument for stare decisis itself. [ 16] In conclusion, both equality and replicability provide arguments in favour of judicial decisions constituting sources of law.

How do lawyers think about precedents?

On the first point, Common Lawyers ordinarily think of precedents as constituting the law up and until they are overruled. Once overruled the later decision is (normally) given retroactive effect, so the law is changed for the past as well as the future.

Why don’t lawyers use drama in their arguments?

That may happen of course, in today’s litigation, but generally the arguments which win cases are not replete with drama, sound or fury. That is because mature reflection goes into a judgment, not a momentary lapse of reason or a sudden storm of emotions.

How do you present an argument like a lawyer?

Laws Of Conversation: How To Argue Like A LawyerIdentify The Issue And Don't Deviate From It. Recognise the main point of discussion and stick with it. ... Leave Emotion At The Door! Emotion will never win an argument. ... Be Wary Of Shifting Dialogues.

How do lawyers use rhetoric?

In particular, awareness of rhetoric allows a lawyer to analyze his audience, often a judge, and better communicate inside the courtroom. In the courtroom, lawyers practice the skill of rhetoric to persuade judges.

How do lawyers identify critical facts in a case?

To identify critical facts, lawyers examine the reasoning of the controlling cases and review what facts the court relied on to reach its holding. How can both a Plaintiff and a Defendant use the same precedent to support their arguments? By analogizing or distinguishing.

How do lawyers use logic?

Lawyers engage in five types of legal reasoning. Lawyers base their arguments on rules, analogies, policies, principles, and customs. Rule-based reasoning relies on the use of syllogisms, or arguments based on formal logic. A syllogism consists of a major premise, a minor premise, and a conclusion.

How do lawyers use persuasion?

A great deal of practicing law is persuading someone to believe, act or agree with your client's position, whether it is in a courtroom, a boardroom, a negotiation or at a dinner table. We seek to persuade juries, judges, colleagues, friends, family or the press that we are right and that others are not.

How do lawyers persuade judges?

They Appeal to Emotions – Appealing to a person's emotions is the quickest way to get them on your side. Lawyers often use this to their advantage. They pull at the heartstrings of judges and jurors, pique their interest and get them emotionally invested in the case.

How do you apply case law to facts?

Some lawyers describe the application of law to facts by using the metaphor of line drawing: by adopting a rule, the lawyer draws a line between two categories of factual situations. In the category of situations on one side of the line, the right or duty created by the rule exists.

How do you do a legal analysis of a fact situation?

Step 1: Gather and Understand the Facts of Your Case. The first step in legal research is to write a statement of facts. ... Step 2: Determine Your Legal Problem and Your Desired Outcome. ... Step 3: Finding Legal Information and Reading About the Law. ... Step 4: Legal Analysis, Legal Writing, and Beyond.

How do you determine the facts of a case?

Facts are the “who, when, what, where, and why” of the case. Describe the history of the dispute, including the events that led to the lawsuit, the legal claims and defenses of each party, and what happened in the trial court. Do not merely copy the facts verbatim; not every detail is important.

How do lawyers use deductive reasoning?

At its core, the analytical paradigm is the use of deductive reasoning , working from the general to the specific. It is the deductive approach that is used by attorneys to apply new facts to well-established rules. Deductive reasoning is accomplished using what is known as a syllogism .

What is the use of logic in legal reasoning?

One use of logic in the law is motivated by the idea that logic provides a more precise and perspicuous way of conveying the content of legal norms than the natural language used by legislators and jurists.

Do lawyers use inductive reasoning?

Lawyers often use inductive reasoning to draw a relationship between facts for which they have evidence and a conclusion. The initial facts are often based on generalizations and statistics, with the implication that a conclusion is most likely to be true, even if that is not certain.

Who said a judge is like an ill tuned cymbal?

Even though quite a long time back Francis Bacon, then Lord Chancellor, commented about garrulous Judges that a much-talking Judge is like an ill-tuned cymbal, in real life they are the norm.

What is the most important weapon in a lawyer's arsenal?

One of the most important weapons in a lawyer’s arsenal is “argument”. The word “argument” engenders visions of debate, the heat and fury of positions attacked and defended strongly, though with words.

How were these things formulated?

How these things were formulated has many answers, but the most commonly accepted one is that these hark back to the courtly culture of a High Court of the King, where unless the King was pleased to suffer you speak, you had to keep quiet. What you say must please him. A bit like “Her Majesty’s Loyal Opposition”.

Writing a legal argument

The example paragraphs below demonstrate the things you need to include to write a successful legal argument.

Identify relevant legal issues and apply the law to the facts

These model paragraphs show how a student has successfully identified the legal issues and applied those issues to the facts of the law.

What are the characteristics of legal reasoning?

1. Precedent and analogy in legal reasoning. Arguments from precedent and analogy are characteristic of legal reasoning. Legal reasoning differs in a number of ways from the sort of reasoning employed by individuals in their everyday lives. It frequently uses arguments that individuals do not employ, or that individuals employ in different ways.

Why is an earlier decision followed in a later case?

Analogy involves an earlier decision being followed in a later case because the later case is similar to the earlier one.

What is the difference between precedent and analogy?

Precedent and analogy are two central and complementary forms of legal argument. What makes them characteristic of legal reasoning is the circumstances of decision-making in law. The greatest contrast is with individual reasoning, where neither precedent nor analogy have the same significance.

What is precedent in law?

A precedent is the decision on the law in a case before a court or some similar legal decision-maker such as a tribunal. Paradigmatically in Common Law legal systems a judicial decision is given in a judgment which has five aspects to it: 1 a recitation of the facts of the case, i.e., an account of what happened [ 4]; 2 an identification of the legal issue —the disputed question of law—which the court is being asked to resolve; 3 the reasoning over the appropriate resolution of that issue; 4 the ruling resolving the issue put before the court, e.g. that in these circumstances the defendant has breached a contract, or does not owe the plaintiff a duty of care, or holds the property on trust for a third party, or made a decision contrary to natural justice; and 5 the result or outcome of the case, i.e., which party succeeded in the action; which follows from (d).

Why do we use analogies in law?

Why does the law make use of arguments by analogy, rather than simply deciding novel cases on their own merits? In ordinary moral deliberation, analogies are used to argue that one disputed situation is indistinguishable from another situation where the merits are relatively clear. They leave three main responses open: (a) that the case is indeed indistinguishable since the same rationale applies to both; (b) that the case is distinguishable; or (c) that the case is indistinguishable, but upon reflection the assessment of the original case was mistaken. (Reflection on another case might, of course, lead one to conclude that one's original assessment was mistaken, even though the two cases are distinguishable.) As a result, analogies are useful heuristic devices for deepening and sharpening reflection on the merits. It is also the case that people are often more confident in their judgements about various concrete cases than they are about abstract theories that attempt to account for their judgements, and so regard this is a more profitable way to approach a question (see Sunstein 1993, 775–7).

What is the difference between a statute and a precedent?

The real difference between precedent and statute lies in the fact that in the case of statutes legal systems have elaborate conventions of interpretation to assist in the process of deriving the law from a legislative text, whereas in the case of precedents they do not.

What is reasons based reasoning?

The reasons-based approach to analogical reasoning focuses on the justifications for the analogical case (for two very different accounts see Raz 1979, 201–6 and Brewer 1996). It considers the extent to which the rationale for the decision in the earlier case is applicable to the case at hand. Take the case of the impersonation of a boyfriend in the law of rape. Whether this situation is analogous to the impersonation of a husband depends on the reasons for the latter vitiating consent. There need be no single principle that underlies the rationale: it may rest on a number of factors that reinforce the conclusion.

What is the role of a lawyer in the legal system?

As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client ...

Why is it important to be a lawyer?

In addition, a lawyer should further the public's understanding of and confidence in the rule of law and the justice system because legal institutions in ...

What are the rules for disciplinary assessment of a lawyer?

The Rules presuppose that disciplinary assessment of a lawyer's conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation.

What is the role of a negotiator in a legal case?

As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a client's legal affairs and reporting about them to the client or to others.

What should a lawyer maintain?

A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law. [5] A lawyer's conduct should conform to the requirements of the law, ...

What is the purpose of the Rules of Civil Liability?

The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons.

What is the term for a lawyer who has discretion to exercise professional judgment?

Others, generally cast in the term "may," are permissive and define areas under the Rules in which the lawyer has discretion to exercise professional judgment. No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion.

What does it mean to be a good attorney?

A good attorney recognizes that effectively representing a client begins and ends with zealously guarding her reputation and going above and beyond the baseline of ethical standards imposed by our profession.

Do Pitbull attorneys need to channel their emotions?

Indeed, prospective clients will often express a desire for a “pitbull attorney” who will inflict pain and misery on their adversaries. But that is not what a client needs, and a lawyer has an obligation to channel the client’s emotions in a constructive manner.