Writing the Right Arguments on Short Notice
by Scott Wood
(County Bar Update, January 2008, Vol. 28, No. 1)

 

Writing the Right Arguments on Short Notice

 

By Scott Wood, clinical professor, Loyola Law School, Los Angeles. Wood offers writing workshops for litigators and one-on-one consultations. He can be reached at Scott.Wood@LLS.edu.

 

In Hamlet, Shakespeare wrote that “brevity is the soul of wit.” We usually translate Queen Gertrude’s pithy pronouncement to the windbag Polonius as “Keep it short.” But for lawyers, the “soul of wit” has other connections to brevity. For example, time is often brief for coming up with the right arguments—the deadline for filing the brief or moving papers can be tight. Persuasive legal writers need to conjure arguments on short order and under pressure. But the arguments also must be precisely targeted, using the right type of legal argument. Legendary UCLA basketball coach John Wooden’s famous teaching applies: “Be quick, but don’t hurry.”

 

One way to be quick about finding the right argument is to know this secret: There are only five types of legal argument. Once embedded in working memory as a mental schema, the five types are like surgical instruments waiting to perform. And like an array of surgical instruments, each of the five types is made for particular purposes, each can complement and buttress the other.

 

Thanks to Professor Wilson Huhn, the necessary surgical training is at hand in his splendid little book, The Five Types of Legal Argument.1 He puts the matter succinctly:

Legal arguments may be based upon text, intent, precedent, tradition, or policy analysis. Each type of legal argument springs from a different source of law. Each type of argument functions as a rule of recognition. Each type of argument is based upon a different set of evidence. And each type of argument serves different values.2

The five types can be ranked from objective down to subjective. In general, the most objective arguments are based on text, legislative intent, and case precedent. The objective arguments have particular weight in the trial court where the judge is bound by stare decisis. Moving down the hierarchy, arguments based on tradition (fairness, equity, cultural values) and public policy are more subjective. But in the higher courts, such arguments often prevail, especially where the court decides to depart from stare decisis. Persuasive legal writers combine the types of arguments: The statutory text is buttressed by public policy; the controlling precedent is also reflective of traditional social values.

 

Huhn further teaches that each of the five types of argument can only be made in two or three ways.3 This teaching contributes to the efficient development of the right arguments. Facility with the five types enables the persuasive writer to be quick without hurrying.

 

Text. As Judge Patricia Wald asserts, “Text comes first, and if it is clearly dispositive, then the inquiry is at an end.”4 To make the text argument, the advocate resorts to 1) plain meaning, 2) canons of construction, 3) intratextual arguments. Of the three methods, plain meaning has become paramount, certainly in the U.S. Supreme Court.5

 

Intent. The second type of argument is based on the intent of those who wrote the text. In Consitutional interpretation, Alexander Hamilton cited the “intention of the people.”6 John Marshall famously pointed to the “intent of the Framers.”7 But intent arguments apply to a wide variety of texts, from statutes and administrative orders to contracts, leases, and wills. Again, this type of argument can only be made in certain limited ways: 1) evidence of intent in the text, 2) previous versions of the text, 3) legislative history, 4) other official comments or comments by the drafters.

 

Precedent. Huhn notes that “[s]ince the time of Sir Edward Coke and Sir Matthew Hale, distinguished judges who each served a Lord Chief Justice of England in the 16th Century, judicial precedent has been considered to be an independent source of law.”8 And since 1869 when Professor Langdell introduced Harvard Law students to the case method, judicial opinions are most of the law studied in American law schools. In law practice, “reasoning from case to case”9 is the daily labor, certainly for litigators. This third type of argument is primarily made only one way: arguing by analogy. If the analogy holds, then the precedent controls under stare decisis.10

 

Tradition. Professor Cass Sunstein explains that “[the] common law implements the customs of the people; it does not impose the judgment of any sovereign body.”11 The argument based on tradition refers to rights “so rooted in the tradition and the conscience of our people as to be ranked fundamental.”12 This fourth type of argument applies to many subjects, not only Constitutional issues. Persuasive arguments based on tradition are used in cases as diverse as the customary usage in commercial practice13 to customary social drinking.14 Given the broad scope of social values and traditions, the sources for this argument are myriad. Since courts frequently cite such sources of law, however, arguments often can be based on case precedent that explicitly relies on tradition.15

 

Public policy. The last type of argument asserts that the court’s decision will have a social consequence, that it will promote the common good or cause the opposite, some social evil. Huhn instructs: “Policy analysis proceeds in two steps. Every policy argument consists of a predictive statement and an evaluative judgment.”16 Brown v. Board of Education is a famous example. The factual prediction was that enforced segregation in public schools may affect the hearts and minds of children “in a way unlikely ever to be undone.”17 The evaluative judgment was that such “separate but equal” schools were unconstitutional. Thus, making a public policy argument requires a crystal ball, a clear prediction of social consequences. As is true of arguments based on tradition, the scope of available public policy arguments is far reaching. Again, such arguments are often combined with case precedent.18

 

Of course, it is not enough to know how to make arguments on short order. Persuasive writers also must know how to attack opponent’s arguments, usually on even shorter order. Professor Huhn’s exposition of the five types on argument includes detailed instruction on intra-type attacks (e.g., arguing against a text argument based on plain meaning with an argument that the text is ambiguous). Huhn also adds instruction on cross-type attacks (e.g., text versus intent, or precedent versus policy). In short, every type of argument is vulnerable to attacks that use or deconstruct the same five types of argument.

 

Brevity is also the soul of Huhn’s invaluable little book. If Polonius had read it during the hours before he made his windy speech, perhaps he could have avoided incurring royal wrath—and made his points persuasive. May you do both before your next argument to the court.

 

1 Wilson Huhn, The Five Types of Argument (2002); compare Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (2006); Philip Bobbitt, Constitutional Interpretation (1991) (six types of argument); Harold J. Berman, Toward an Integrative Jurisprudence: Politics, Morality, History, 76 Cal. L. Rev. 779 (1988) (integrating three types of argument).

 

2 Huhn at 13.

 

3 Id. at 17-68.

 

4 Huhn also quotes Justice Cardozo: “The rule that fits the case may be supplied by the constitution or by statute. If that is so, the judge looks no farther. The correspondence ascertained, his duty is to obey.” Id. at 20 (Cardozo, The Nature of the Judicial Process 14 (1922)).

 

5 See Antonin Scalia, Judicial Deference to Administrative Interpretation of Law, 1989 Duke L. J. 511 (1989).

 

6 The Federalist No. 78, in Alexander Hamilton, James Madison & John Hay, The Federalist Papers 395 (1982).

 

7 Marbury v. Madison, 5 U.S. 137 (1803); see Huhn at 31-33.

 

8 Huhn at 41.

 

9 Edward Levi, An Introduction to Legal Reasoning 1-1 (1948).

 

10 Planned Parenthood of Southern Pennsylvania v. Casey, 505 U.S. 833, 854-855 (1992) (elaborating on doctrine of stare decisis as compelling Court to follow Roe v. Wade).

 

11 Cass R. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741, 754 (1993).

 

12 Palko v. Connecticut, 302 U.S. 319 (1937).

 

13 U.C.C. §1-105(2) (usages of trade).

 

14 Kelley v. Gwinnell, 96 N.J. 538 (1984) (condemning tradition of social drinking as cause of drunk driving).

 

15 Atkins v. Virginia, 536 U.S. 304, 321 (2002) (interpreting Eighth Amendment in light of “evolving standards of decency” to hold execution of the mentally retarded unconstitutional); Washington v. Gluckberg, 521 U.S. 702 (1997) (right to physician-assisted suicide turns on whether such a right is found in “our Nation’s traditions”).

 

16 Huhn at 63.

 

17 347 U.S. 483, 494 (1954).

 

18 Unico v. Owen, 232 A. 2d 405 (1967) (weighing competing public policies underlying consumer protection statute).

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