when a lawyer shows the reasoning behind a case the lawyer uses

What is legal reasoning in a court case?

 · 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. That may happen of course, in today’s litigation, but generally the arguments which win cases are not replete with drama, sound or fury.

How does a lawyer decide what to do?

In broad terms, the decisions a lawyer makes in a case are related to strategy or tactics, or technical questions related to procedure. These decisions are the lawyer’s because they usually do not “materially affect” the client’s interests. See Model Rule 1.2. Tactical or strategic decisions may involve the following: the choice of motions;

How do lawyers argue a court case?

 · The lawyer then uses the theme that they created (as opposed to using the facts of either case) to argue that because the theme exists in both the previously decided opinion and the client’s case, the case law outcome should be applied to the client’s case . Arguing the theme makes it unnecessary for the lawyer to change the facts of their case to mirror those of the …

When does a lawyer need to distinguish case law from case?

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What reasoning do lawyers use?

Lawyers use inductive reasoning to synthesize rules. In other words, lawyers take the holdings from several cases and by synthesizing those specific cases, they come up with a general rule.

What is the reasoning in a court case?

Reasoning is the way in which the court applied the rules/ legal principles to the particular facts in the case to reach its decision. This includes syllogistic application of rules as well as policy arguments the court used to justify its holding (why the decision was socially desirable).

How do you find the legal reasoning in a case?

I. Legal Reasoning - Generally Issue - What specifically is being debated? Rule - What legal rule governs this issue? Facts - What are the facts relevant to this Rule? Analysis - Apply the rule to the facts. Conclusion - Having applied the rule to the facts, what's the outcome?

What are the 4 steps in legal reasoning?

Steps in Legal Reasoning 1) Issue - What specifically is being debated? 2) Rule - What legal rule governs this issue? 3) Facts - What are the facts relevant to this Rule? 4) Analysis - Apply the rule to the facts.

What is reasoning law?

It is the process which involves the reasoning from particular cases to whole group of cases, from specific instances of the concerning law. It can also be called the historical or empirical or a posteriori method. It can be also said that it is a practical ideology to legal work, study and research problems.

How lawyers present their arguments and 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.

What are the methods of legal reasoning?

There are four basic components in legal reasoning which applies to legal process— logic, Justice, experience and policy.

What is legal reasoning in judicial process?

Legal reasoning is nothing but giving a reason for the Judgement. Issue is one in which both the parties to the suit or proceeding were concerned upon a particular material fact which is in dispute between them. Thus, lawyers apply their mind to resolve the dispute either through settlement or through adjudication.

What is inductive reasoning in law?

Essentially, inductive logic involves reasoning from specific examples to propose a general rule. Inductive reasoning is usually associated with extrapolating general rules from different cases where specific facts vary.

What are the types of reasoning?

The three types of reasoning we will explore are inductive, deductive, and causal.Inductive Reasoning. Inductive reasoning reaches conclusions through the citation of examples and is the most frequently used form of logical reasoning (Walter, 1966). ... Deductive Reasoning. ... Causal Reasoning.

What is the decision a lawyer makes in a case?

In broad terms, the decisions a lawyer makes in a case are related to strategy or tactics, or technical questions related to procedure. These decisions are the lawyer’s because they usually do not “materially affect” the client’s interests. See Model Rule 1.2.

Why do lawyers not take on cases?

Sometimes lawyers find their clients’ goals to be unpalatable. This does not mean that the lawyer may not take on the case. When a lawyer represents a client in a matter, this does not imply that the lawyer himself endorses the client’s positions. Of course, sometimes it’s more than just antipathy towards a client’s goals that prevent a lawyer from wanting to perform certain tasks. It may be due to the lawyer’s lack of time or lack of competence in a certain field of the law. In such cases, the lawyer would be ethically obligated to turn down the case.

What is scope of representation?

From the outset of the case, the lawyer and client should determine the “scope” of the representation. They will set forth the goals of the representation. Some goals are short-term, such as closing on a piece of property, and sometimes they are long-term, as in providing ongoing advice for a corporation.

What is the role of a lawyer?

Importantly, the lawyer is responsible for informing the client of the applicable laws, and operating within the limits of, the laws. The client has a right to discuss with the lawyer how they will pursue their objectives. However, the lawyer does not have to follow through with the client’s requests if the means by which the client wants to achieve his objectives are illegal. In fact, the lawyer is under an ethical obligation not to assist a client in conduct that the lawyer knows is criminal or fraudulent.

What is the most important thing about a lawyer?

A lawyer is entitled to limit the objectives of representation, provided he consults with the client from the outset. What is most important is that this is all laid out on the table from the start with the client. Both the lawyer and the client must understand the scope of the representation when pursuing their goals together.

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

A lawyer is obligated according to the rules of professional responsibility to exercise independent professional judgment and to render candid advice. In exercising independent professional judgment, the lawyer should not allow others to unduly influence and sway her opinions in a way that would compromise the quality of the representation.

What should a lawyer explain to a client?

A lawyer should explain to a client that the client’s conduct would be unlawful. The lawyer must not recommend the illegal conduct, and may never instruct the client on how to break the law.

What happens when the attorney articulates the theme that persuades the judge or jury to believe the cases are

The real magic happens when the attorney articulates the theme that persuades the judge or jury to believe the cases are similar enough to warrant the same outcome. Winner!

Why do lawyers use theme?

The lawyer then uses the theme that they created (as opposed to using the facts of either case) to argue that because the theme exists in both the previously decided opinion and the client’s case, the case law outcome should be applied to the client’s case .

How to apply case law?

If a lawyer wants to apply the case law (“I think my client should get the same result as the previously decided opinion”), the lawyer has to think of ways the opinion facts are similar to the facts of the client’s case and create a theme that exists in both sets of facts. The lawyer then uses the theme that they created (as opposed to using the facts of either case) to argue that because the theme exists in both the previously decided opinion and the client’s case, the case law outcome should be applied to the client’s case . Arguing the theme makes it unnecessary for the lawyer to change the facts of their case to mirror those of the previously decided opinion to “win” for their clients.

What is the first step in a lawyer's career?

First, lawyers understand and believe the facts their clients relay to them. Second, after hearing the facts and identifying the legal issues a client is facing, a lawyer must find a previously decided opinion (called case law or precedent) with an outcome that favors their client’s position.

What is the most extraordinary skill to lawyering and client advocacy?

Winning a case has much to do with the attorney’s skill in creating a theme that will stick in the minds of the judge and jury and win the case – the most extraordinary skill to lawyering and client advocacy.

Do lawyers change facts to win a case?

Lawyers are notoriously known for changing the facts to “win” their case. Yet, the most successful attorneys never change the facts to win. They simply do not need to do so. How, then, does a lawyer win a case? First, lawyers understand and believe the facts their clients relay to them.

What is legal reasoning?

Legal Reasoning. Legal reasoning is a method of thought and argument used by lawyers and judges when applying legal rules to specific interactions among legal persons. Legal reasoning in the case of a court’s ruling is found in the ‘Discussion or Analysis’ section of the judicial ruling. It is here that the court gives reason ...

What are the two central forms of legal reasoning?

The two central forms of legal reasoning are arguments from precedent and analogy. These are found in many legal systems such as the common law which is found in both England and the United States. Precedent is where an earlier decision is applied in a later case because the two cases are same.

What is deductive reasoning?

This is a means of drawing out ruling from another judicial opinion, or existing constitution, legislative provision and applying it in another case. The rule statement is mostly broad rather than narrow when using deductive reasoning.

What are the core elements of a legal reasoning?

There are core elements that must appear and be addressed in the reasoning: The question or the legal issue before the court. The relevant facts of the case. The legal rule. Other considerations that may be brought before the court. As such, there is the burden to address the stated elements clearly and concisely.

Why is an earlier decision being used in a later case?

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

Can a judge rule on personal preference?

It is important to note that there are peculiar situations where both of the above methods will not suffice in determining a case, and the judge may then rule according to personal preference.

Does bias presume the law?

Nevertheless, the bias does not presume the law as it is to be just, fair or practical and thus immune from change. Judges have often in the past made use of provisions in the law to avoid applying precedent or analogy in instances where such an application would result in unfair or undesirable outcomes.

What factors do courts look at when deciding a contract?

Plaintiff agrees to the terms of the contract. Some factors the courts look at are mental state, bargaining power, time constraints, the presence of any reasonable alternatives, and other mitigating factors that would push a party to feel forced to sign the contract quickly.

Why do people assert they committed a crime?

Put simply, the defendant in a criminal action will assert that they committed a crime because they were forced into it through violence or the threat of violence. The reasoning behind this defense is that the person no longer possessed free will due to the duress.

How does duress affect consideration?

In a contract situation, the presence of duress can affect consideration. If there is no consideration present, this can help prove the existence of duress. This is because while one party benefits, the other party only receives the original promise and promising to complete an act you are already legally bound to do is not an example of consideration.

What is the difference between duress and coercion?

While coercion is often a term used interchangeably with the threat component of duress, it is a separate action. Coercion focuses on the force used to get someone to do something versus the mindset of the person who is being forced to complete an act.

What is duress in civil law?

Duress can be present in civil situations, but also used as a defense to a crime in criminal law. Some common examples of duress in civil law include the following: Telling someone that if they do not sign a contract, they will publicly release humiliating information about them; and.

Why did you rob a store?

You robbed a store because another person was threatening you with a gun; and. Threatening harm on a person’s child if they do not commit an illegal act. Whether a duress defense holds up will depend on the circumstances surrounding the crime.

Can you file a lawsuit based on duress?

Since written proof of duress is not always available, this can sometimes be hard to prove. A person cannot file an independent lawsuit based on duress. On the other hand, to prove duress defense a party generally needs to prove the following: Plaintiff agrees to the terms of the contract.

Which court has decided on lawyer advertising?

The U.S Supreme Court has decided several cases on lawyer advertising. What are some rules that have come out of those cases?

Who represents a bankrupt company and one of is creditors?

The lawyer represents a bankrupt company and one of is creditors.

What are the restrictions on legal fees?

the following restrictions are placed on legal fees by ethics rules. Fees cannot be for illegal activity; fees cannot be excessive, fees cannot be unconscionable. Most state have ethics rules on fees that. consider the number of factors in determining if a fee is excessive.

Can bars have reasonable time?

Bars can adopt reasonable time , place, an matter restrictions on ads.

Does a lawyer have a duty of confidentiality?

The lawyer has no duty of confidentiality unless the lawyers website gave a reasonable expectation that there would be one.

What happens if you pay upfront for a lawyer?

Anytime you pay an upfront fee, you risk the lawyer not doing much or any work.

Why do law firms charge high billing rates?

Sometimes, law firms use high billing rates to stick clients with unnecessarily expensive bills for research, secretarial work, and other low-level tasks.

How much money did Sullivan and Cromwell misappropriate?

For example, a lawyer at Sullivan & Cromwell used these techniques and others to misappropriate over $500,000 before being disbarred in 2008, according to the Wall Street Journal. Besides outright false expenses, the lawyer admitted to improperly billing for personal "meals, travel and lodging" and first-class tickets on international flights, for which he paid for coach or business-class tickets, pocketing the difference.

How much did Vick's lawyers charge for his bankruptcy?

Faced with a $2.66 million fee for a bankruptcy case, Vick learned that his lawyers were charging for extensive overhead expenses. As Am Law Daily noted, these included the cost of running air conditioning during the weekend; taxi rides home for employees working late; and $1,200 for plane tickets from New York to Kansas.

How much did the attorneys charge for the Ponzi scheme?

Allen Stanford Ponzi scheme recovered only $81 million. According to the AP, the attorneys charged $27 million for three months of shoddy work.

What does an X mean in a notification?

Two crossed lines that form an 'X'. It indicates a way to close an interaction, or dismiss a notification.

Is it justifiable to spend big bucks on litigation?

Like a sick person, a company facing litigation is willing to spend big bucks to get out of a trouble. It's entirely justifiable, and lawyers are only too happy to oblige, billing clients for every minute worked, and then some.

What is the principal issue in the case of the insurance company and its lawyer?

As the court explained, “The principal issue in this case is whether, and to what extent, a party who is represented by counsel has the right to rely on a representation by opposing counsel during settlement negotiations.” The insurance company and its lawyer lost. The court held that the victim’s lawyer had right to rely on allegedly fraudulent representations of the liability insurer’s lawyer and the law firm during settlement negotiations. Even though the victim’s lawyer had means to ascertain relevant facts, the law should not require the lawyer to verify the other lawyer’s representations:

What are the opinions expressed in the Verdict?

The opinions expressed in Verdict are those of the individual columnists and do not represent the opinions of Justia.

What is the ABA model rule?

It surprises many people—including some lawyers—that the ABA Model Rule prohibits (or, more precisely, limits) lawyers in lying to the opposing party in the course of negotiations. Rule 4.1 states that while representing a client, the “lawyer shall not knowingly” do two things: first, the lawyer may not knowingly make a “false statement of material fact or law to a third person”; second, the lawyer may not “fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6 [the rule that protects attorney-client confidences].”

Why is a client's death special?

There is a logical stopping point. The client’s death is special because death automatically terminates the agency relationship. The lawyer for “Client” now represents the “Estate of Client.” ABA Formal Opinion 95-397 (1995) advises that a lawyer “must inform her adversary of the death of her client in the first communication with the adversary after she has learned of that fact.” It will not be enough to say, “He’s out of pain,” or “He is resting.” The lawyer has to volunteer the truth.

What is Slotkin v. Citizens Casualty Co?

of New York, 614 F.2d 301 (2d Cir. 1979), cert. denied, 449 U.S. 981, 101 S. Ct. 395, 66 L. Ed. 2d 243 (1980). The court upheld the entry of a fraud judgment against the lawyer in favor of the defrauded claimant. The evidence showed the defense lawyer’s reckless disregard of truth or falsity of his statement that “to the best of [the lawyer’s] knowledge,” there was $200,000 in insurance. In fact, documents in that lawyer’s possession showed that there was $1 million in coverage.

Do lawyers lie to opposing attorneys?

Lawyers, in general, may not lie to their opponents in negotiations. However, they do not have an obligation to volunteer adverse facts; they simply must not lie. There is one exception to the duty not to volunteer adverse facts. The leading case isVirzi v. Grand Trunk Warehouse & Cold Storage Co., 571 F. Supp. 507 (E.D. Mich. 1983). The plaintiff in a personal injury case died from causes unrelated to the lawsuit prior to a pretrial conference and settlement negotiation. All during settlement negotiations, the plaintiff’s lawyer did not inform either the opposing lawyer or the court of the plaintiff’s death. Defendant’s lawyer never specifically asked the plaintiff’s lawyer whether the plaintiff was still alive and available for trial. The opposing lawyer did not lie, but he did fail to volunteer an important fact: his client’s death. When the probate court appointed a personal representative to administer the plaintiff’s estate, the plaintiff’s lawyer did not move to substitute parties. When the defendant later learned what had happened, it moved to set aside the settlement. The court agreed with the defendant. The lawyer’s duty of zealous representation

Who is the professor of law at Chapman University?

Chapman University law professor Ronald Rotunda discusses the various judicial opinions and ethics rules that govern whether, when, and to what extent lawyers may lie during negotiations.