Legal arguments and reasoning follow a similar path, drilled into aspiring lawyers beginning their first year of law school. In an appellate brief, the lawyer begins by setting out the issue or question to be answered, followed by the governing rule of law. Then comes an analysis, in which the legal standard is applied to the relevant facts of the case, and a conclusion. While this formula is certainly familiar, and it seems simple enough to apply, the reality is that there are numerous pitfalls and byways that can derail the attempt at a sound legal argument. As Plato wrote, “Arguments, like men, are often pretenders.”
Legal arguments must be more than just logically valid. After all, an argument can be valid but still lack the soundness required when applying abstract principles in real-world settings. Legal analysis is complex, requiring the synthesis of general legal principles, specific governing laws, and multiple facts to yield a legally sound and just result.
In legal reasoning and analysis, everything good stems from starting with the “right” question. One of the most frequent problems in appellate briefing is the failure to clearly identify the core issue or issues at the outset, leaving the judge to trudge through pages of briefing without knowing what she is looking for. Lawyers can also derail their legal argument from the very beginning by misidentifying the key issue or, worse, failing even to recognize it and bring it forward on appeal.
A far better practice is to consider your legal goals from numerous perspectives and frame the issue carefully from the start. Make sure you keep your legal goals in mind—and the proof required to support them—from the moment the client comes in, through your preparation for trial, through preparation of the jury charge, through trial, and on to appeal. The more complex the case, the more important it is to have a clear, concise statement of your key issue or issues. As Einstein is credited with saying, “If you can’t explain it simply, you don’t understand it well enough.”
You cannot hope to complete a sound legal analysis if you cannot distill the legal controversy to its essence. And to communicate the essence of the case effectively once you are on appeal, you must be precise. Abstract legal principles divorced from the facts that give them context will not provide any structure to your analysis of the applicable law and relevant facts. But also keep in mind that issue statements that are too specific or over-stuffed with irrelevant facts are unwieldy and just as unhelpful as vague issue statements.
The central question or issue in the case should be backed up by research that helps you build a theory of the case and a plan for going forward. Adequately researching the legal issues helps not only in articulating the central question but also in making a straight, logical path for your analysis. Research involves looking into the law and thoroughly examining the facts of the case. The soundness of the analysis comes from scrupulously applying the right law to the facts of the case, and doing so in a way that takes into account all of the relevant legal and factual considerations.
Legal arguments cannot be sound when they depend on the omission of a significant fact or legal premise, but this is precisely where lawyers are prone to develop blind spots. Good practitioners have found ways to guard against such blindness. They focus the on the actual text of the law, citing relevant statutory or contract provisions in their entirety. And they consider statutory provisions and case holdings in their entire context. Good legal analysis also relies on appropriate authority—authority that is relevant to the issue at hand and from a controlling jurisdiction. Be wary of over-reliance on secondary sources because courts usually find statutory and case law most relevant and persuasive.
Sound reasoning requires, above all, intellectual integrity. If a case from another jurisdiction is helpful to the analysis, include it and be clear about its role as persuasive, rather than controlling, authority. Do not try to pass the case off as controlling or as holding something that it does not. When analogizing or distinguishing relevant cases, be thorough in considering the unique facts and the larger context of those cases in addition to considering the facts of your own case. Explain why omitted facts or legal principles are not relevant or do not affect the legal conclusion.
Legal analysis done with this kind of intellectual integrity is much more likely to produce sound conclusions, and it helps the lawyer to avoid some of the common logical errors that undermine sound legal reasoning. A lawyer can do a fine job of setting out the governing rule of law, but then write an analysis that is not connected to the legal rule because it omits a discussion of a key element or fact. Lawyers sometimes draw irrelevant conclusions, such as when they ignore the application of a statutory exception to the general rule or when they try to isolate a contract provision from its larger context. Legal “reasoning” can be employed to overextend the application of a general rule when it fails to take into account the specific facts of the case setting out a general rule or the specific facts of the case at hand.
By synthesizing the relevant facts in the context of both general legal principles and specific provisions of law that govern the issue at hand, lawyers can avoid the common traps and—best of all—persuade judges and win cases.