Vail Law: How do you argue? In law, you can argue by analogy or distinction
January 9, 2018
Like this. Not like that.
Similar to A but — oh my God — nothing like B.
How do you argue? Have you adopted the fashion recently popular in our politic world to lash out, insult, demean and disparage? Are you, instead, sulkily passive-aggressive, boiling while your innards stew? Do you orate, postulate, strut and pontificate? Do you explode, apologize, repeat?
Or do you craft and reason?
While there may be more than one way to skin a cat, undoubtedly, some are bloodier than others. The skin may be separated from the carcass with a dull blade or with a scalpel, ham-handedly or with the skill of surgeon Michael DeBakey.
Do you bludgeon the listener — so long as he can bear to listen? Or do you guide, finesse, persuade and respect the hearer's own ability to think and reason?
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The way you argue matters.
Much of what lawyers do is "argue" but I in no way mean that pejoratively. By "argue," I do not mean bicker, quarrel or squabble. In fact, when a lawyer presents her case before the court, it is known as offering an "argument." There is an art to argument. Let's take a moment to go back to its roots.
The argument clinic
In logic and philosophy, an argument is a series of statements typically used to persuade someone of something or to present reasons for accepting a conclusion. We have confused the term with bickering or quarreling, which is like comparing a pigeon to a raptor. While they have elements in common, in the heart and the soul of the beast, they could hardly be more different.
The general form of an argument is that certain premises are presented in support of a claim or conclusion. That is, "Here are the things, when taken collectively, that will lead to this particular, inescapable result."
In a typical deductive argument, the premises "guarantee" the truth of the conclusion. The ways of formulating arguments effectively are studied in rhetoric and the standard for evaluating the effectiveness of an argument lies in reasoning and in logic. Do the bread crumbs of the arguer's facts and reasoning lead inexorably to the promised land of what was postulated at the outset?
Argument is a process of reasoning. Read that twice. It is a process and involves thinking one's way through logically. What it is not is measuring who is the loudest on the volume meter or who can be most shrill. Process and logic are at the core of it.
Argument and the law
Let me take this one step further and tiptoe into law.
At law, argument may be defined as a form of expression consisting of a coherent set of reasons presenting or supporting a point of view; a series of reasons given for or against a matter under discussion that is intended to convince or persuade the listener.
An argument by counsel consists of a presentation of the facts or evidence and the inferences that may be drawn therefrom, which are aimed at persuading a judge or jury to render a verdict in favor of the attorney's client. The attorney may begin to develop an argument in the "opening statement", the initial discussion of the case in which the facts and the pertinent law are stated, and carry that theme through the case. Bit by deliberate bit, the facts and inferences accrete in favor of the conclusion the attorney wishes the trier of fact to draw. It the attorney is effective, there is only one reasonable conclusion the judge or jury can draw.
But what about where we started, with "this and not that?"
Analogy and distinction are sharpened arrows in the quiver of effective argument. Part of the way we effectively persuade is to relate. We do that every day; "It was like it was in a movie." "It was not like anything you've ever seen before." "It was as big as a house." "It wasn't like that at all."
So part of this is simply human nature; we tether our arguments to familiar hitching posts. What about our argument is within the realm of common experience? To what can and will the jurors relate? But in law it's more than that as well.
Part of legal argument is to distinguish a prior case upon which the court may rely from the case we are presenting. "In the former case, it was like this but our case is different and it is, instead, like that. Here's what doesn't square. Here are the key facts that were present in the first case — and which decided it — that are absent in ours."
Or, the inverse may be true. By analogy, we may wish to persuade the court that a former case upon which the court may rely is so like ours that the court really has no choice but to follow it. "Your Honor, the case of Such-and-Such is squarely on all fours."
Effective argument is a subtle art form, not the wild slashings of an abattoir. And analogy and distinction are among the pencils, brushes, maulstick and palette of the artist's craft. Wielded deliberately and effectively, analogy and distinction guide the vessel of premise to the harbor of logical conclusion. And that result is best achieved absent bloodshed and with civility.
Often, the shriller one is, the less he's saying. It is wise to keep that in mind and to listen to what is actually being said.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, email@example.com.