The Tools of Argument: How the Best Lawyers Think, Argue, and Win is a book that was published in 2013 and written by Joel P. Trachtman that highlights multiple ways to persuade others and to think critically. An informative, helpful book, The Tools of Argument is a great read for not just lawyers and those in the legal profession, but for anyone interested in the art of argument.
Trachtman begins his book by stating its purpose: “The purpose of this book is to equip law students, new lawyers, paralegals, and executives, as well as anyone else who wants to improve their skills of reasoned persuasion, with the powerful and time-tested tools of argument.” (1). Trachtman states that he has been involved in the subject of law for more than three decades, and that he can attest from his firsthand experience of the importance of the tools of argument: “Indeed, these skills are useful to all of us who engage in small or large business dealings, legal proceedings, governmental operations, or large business dealings, legal proceedings, governmental operations, or other negotiations, and who enjoy critical thinking, persuasive presentation of ideas, and victory in arguments. After all, winning arguments is much more fun than losing them.” (1). Trachtman states that developing a critical mind isn’t hard: a main difficulty is finding resources that can provide you with the necessary information, hence the reason why he published his book. Trachtman humorously writes that even though the tools of argument can benefit everyone, they should still be used in restraint at times: “of course, in some social and interpersonal settings, it will be unseemly or even dangerous to think and argue like a lawyer, as most lawyers eventually learn by painful experience. Don’t try arguing to someone to whom you are romantically attracted that you have a right to their reciprocal affection, or that they bear the burden of proving that you are not attractive to them.” (2-3). Trachtman ends his preface with the following words: “I believe in the importance of learning these skills because they work-they make a difference in ‘winning’ or ‘losing’ in the war of words. After all, these techniques of argumentation have evolved and survived over the course of many centuries because they have inherent, compelling logic. People respond to these arguments not because a speaker is overbearing, manipulative, or charismatic, but because they see the logic of the argument. Surprising as it may seem, legal logic is real logic, not separate from other types of logic. If you can bring this compelling logic to bear in legal, business, and interpersonal settings, you can be more persuasive. This book is designed to help you do just that.” (3). Trachtman proceeds to state that lawyers set themselves apart through their intensive critical thinking and argument: while everyone can potentially argue a case, lawyers generally do it much more effectively. Trachtman states that laws are rules that state what kind of behavior is allowed and what kind is to be banned. Furthermore, law is supposed to keep society together: “we might think of law as a set of formal rules that carry the sanction of the state.” (6). Laws are vital due to the security they offer people, seeing how they restrict the potential power and action of other individuals. Law also helps society stay organized, as it is a specific field that ascribes appropriate behavior: “Law, like taxes in the words of the great judge Oliver Wendell Holmes, is the price of civilization.” (7). Those who obey the law have the freedom to continue to be relatively free, while those who disobey can incur the wrath of the state, and are frequently incarcerated (of course, if they break more severe crimes, they may even be executed): “Law is important because it establishes the terms under which the state will apply its force-by which society has agreed through the state and the law how the coercive power of the state can be used.” (8). This gives lawyers a potentially large amount of power, seeing that even though they don’t control a private militia, they have the state behind their backs if they are able to show that their position is correct: “the lawyer has in his briefcase … the force of the state, which in most places is stronger than a hundred men with guns.” (8).
Trachtman then provides a tangible definition of a lawyer: “A lawyer is an expert. The expertise that the lawyer wields is twofold. First, it includes knowledge of how the legal system works-how all the written and unwritten procedural rules apply to guide the determination and application of the law … Second, the lawyer’s expertise includes substantive rules of law, like the rules protecting technology or forbidding the sale of cocaine.” (9). Lawyers, quite obviously, don’t argue what the law should be: they instead focus on whether the law is being followed or not. Lawyers came from the Greek sophists, professionals who helped wealthy patrons get exonerated from condemnation for crimes which they committed: setting a bad precedent, their main focus was on making weak arguments appear strong, and vice-versa. However, modern-day lawyers are generally not sophists, seeing how the objective truth is more important than the subjective one. When it comes to the ethics of being a lawyer (a topic I frequently personally grapple with, seeing that I might be one in the future), Trachtman elaborates, “Legal practice is, to a great extent, ethically ambivalent. Lawyers pledge to represent their clients zealously, and so they are charged, where their client is wrong, with trying to make the weaker argument appear the stronger. Yet, they also see themselves as officers of the court, or agents of the state, and in that role they should seek to enforce the law as intended and must act honestly.” (11). Lawyers, of course, intensively prepare for their cases, and one of the primary ways in which they do so is to anticipate the potential courter-arguments of the opposing side. Trachtman then remarks that laws are never completely whole, as they don’t take into account every scenario: “All laws, and all contracts, are inevitably incomplete. They cannot be written in advance specifically to anticipate every possible circumstance. Courts of other decision-making mechanisms may be assigned the job of completing the contract or the legislation ex post. Other times there is no legal or contractual rule to apply-a gap in our structure of rules. In these cases, the law or contract cannot affect behavior or impose penalties, and any loss remains where it falls.” (13). Trachtman moves forward by discussing that thinking like a lawyer can be aptly summarized as “the art of reasoned persuasion,” seeing how experience is needed: going to law school isn’t enough. Trachtman states that “Law school has three main educational components. First, a large part of law school … is devoted to learning to argue about whether a given precedent governs a new fact situation. Second, much of the time in law school is spent learning the specifics of particular legal rules and how to look up particular legal rules. Third, a great deal of modern law school education in the U.S. is devoted to learning what the law should be-to normative thinking about the law.” (15). Trachtman elaborates, saying that law school focuses heavily on learning terms, and that most of the material in the book he got from experience, not from learning in law school itself (aspiring lawyers should still go to law school, of course). Furthermore, Trachtman states that more than analysis is needed for law school: fields like economics and philosophy should also be applied to the study of law, seeing how morality and feasibility are extremely important elements to consider for sanctions that could be put in place. Trachtman states that the main way of thinking like a lawyer is “analysis and synthesis” - lawyers study individual components of a case separately (analysis) and try to draw connections between them all (synthesis). While this may sound relatively simple, what differentiates lawyers from laypersons is that they don’t draw conclusions before they analyze all the evidence: they hold their judgment and only come up with a potential explanation after substantial analysis. Trachtman elaborates, “In the first paragraph, or section, of your argument, break the crime or claim into elements: analyze the claim. In subsequent paragraphs or chapters, examine each element separately to determine whether it is factually satisfied. Once you are finished, it is easy to ‘synthesize’ or look at all the elements and see whether they comprise the crime or claim in question. This is the concluding paragraph or chapter. Yes, it is dry and stylistically predictable, but its beauty is in the elegance of its function. Good legal writing, like other expository writing, should be parsimonious-including precisely what is necessary to reach the conclusion, and nothing more.” (17). Two main statements given are “if-then” and “if what,” seeing that they both set the parameters of the case being discussed: “Thus, legal analysis consists of (a) breaking down each legal rule into a list and (b) evaluating whether each condition is met so as to result in legal responsibility. Importantly, the elements are generally linked conjunctively; if any condition is not satisfied, legal responsibility does not result. Analysis and synthesis answer every question regarding whether an act violates the law or is required by law. The analysis breaks the prohibition or requirement into component conditions then sequentially evaluates whether each condition is met. The synthesis merely observes whether each condition is met. It’s simple.” (18).
To reiterate, good legal documents are precise, explicit, and to-the-point, as they use words that are easy to understand, serving to clearly show the relationship between the two parties. Trachtman then discusses inferences: in order for a person to be convicted of a crime, the evidence has to “be beyond a reasonable doubt.” This qualification is frequently quite vague and flexible, making it hard to define. Trachtman then states that a frequent question asked in arguments is “How do you know?” This can also be used by lawyers, but this carries substantial risk, seeing that the opposing side may have much evidence. However, sometimes it can be effective, as there may be gaps and weaknesses in the logic of the other party: “Once we find a gap, we just need to attack it until the entire argument falls. My late colleague, Keith Highet, one of the United States’ greatest practicing international lawyers, referred to this as the loose thread strategy: pull on it and the fabric of your opponent’s argument unravels … However, the most persuasive arguments set out preemptively, or otherwise make available, how the author knows that each proposition is true. That is, the most persuasive arguments answer in advance the ‘how do you know’ question by setting out the pedigree of each proposition.” (22-3). Of course, this ties back to the whole concept of preparation: preparation and foresight are mandatory for good argumentation. This also explains the popularity of footnotes: a footnote “preempts argument by showing the support for the proposition. It allows the decision-maker to see how well supported the argument is. Legal argument even has a particular set of rules for citation that is intended to discipline and guide the use of references. These rules require a degree of disclosure of rules of the game regarding how we assert the pedigree of our knowledge.” (23). However, this does carry some risk, seeing how if a lawyer lays out their argument, their opponent may try to refute some points. Trachtman states that there are two types of knowledge for lawyers: knowledge of facts and knowledge of the law. Trachtman states that flexibility and interpretation are key themes of law, seeing how the law is fallible. He then states that liberal systems are “democratic, rule-of-law based” “that accepts a variety of visions of substantive justice,” while illiberal systems are inflexible and “does not accept the possibility of diversity of values” (25). Consequently, liberal systems believe that law is separate from ethics, seeing how “in a liberal system, individuals have implicitly or explicitly agreed that no one has a clear and infallible vision of justice” (25). Trachtman writes that different areas have different legal systems, which makes international law interesting to study. When it comes to acquiring a procedural advantage, an effective way of getting one is to say that the criteria the other party used for reaching their conclusion is defective, thereby rendering their judgment inconclusive and inaccurate. Another method lawyers use (mostly for criminal cases) is saying that the presiding court isn’t appropriate to determine the judgment (especially for international law - can foreign citizens and companies be tried where they are currently located, or do they have to be forced to the stand in the place which they hold citizenship?). As Trachtman details, in one case “Ecuadorian plaintiffs from the Lago Agrio region argued that Texaco (later acquired by Chevron, so from now on I will refer to Chevron) had so polluted their land in its oil production operations that it caused billions of dollars’ worth of damage. That case was filed in a New York court in 1993, and Chevron … argued that the U.S. courts were the wrong place for the lawsuit. In 2001, the New York court agreed and granted Chevron’s request to dismiss the U.S. lawsuit based on Chevron’s promise that it would submit to the jurisdiction of Ecuadorian courts and … would pay any judgment. In 2011 (yes, it took that long), the Ecuadorian court awarded the Ecuadorian plaintiffs a judgment for $18 billion. So, Chevron’s argument that the New York court was the wrong forum did not work out as well as planned. Chevron responded with an argument that the Ecuadorian court’s judgment was so defective that it should not be enforced anywhere Chevron had assets.” (35). This concept is also seen in religious courts: “In Israel, for example, Jewish, Druze, Moslem, and Christian religious courts have exclusive jurisdiction over specified matters, such as marriage and divorce, within their religious communities.” (36). When it comes to challenging the authority of a court or tribunal, another popular method is claiming bias, conflicts of interests, and other forms of discrimination: this can be effective, and when it does, a judge may recuse themselves (withdraw from the case). This is frequently done by citing the personal interest (that is, financial) of the opposing lawyer. Furthermore, “Experienced lawyers often know some of the proclivities, or ways of thinking, of particular judges and will seek to avoid judges who they think will be less sympathetic to their arguments. Often, there is little room for lawyers to affect the choice of judge. But in jury trials, lawyers have an opportunity to try to identify the proclivities or bias of prospective jurors through a process known as ‘voir dire.’ Lawyers will be allotted a certain number of challenges for no stated reason and may have additional challenges that they can use if there is evidence of possible bias.” (40). Trachtman states that framing a question is also helpful for a case: in one incident, a company that produced chemicals that were fire retardants were sued on the grounds that their materials could cause cancer and brain damage. They responded by reframing it: “They suggested that those at risk for fires are the poorest, and are ethnic minorities, and that a move away from fire retardants would disproportionately harm these people. Of course, an easy response is that the health effects of these chemicals also harm these people, but the health advocates would have to show that the health effects are worse than the fire effects. So, by reframing the fire-retardant chemical debate as a debate about disproportionately adverse effects on minorities, the chemical companies are able to add some strength to their side of the argument.” (43). Yet another method of persuasion is to say that even if one broke a rule, other rules supported their behavior: this is quite common, seeing just how many rules are in society. Trachtman discusses the “lex specialis” principle, “which holds that in the event of conflict between two rules, the more specific rule should be applied. Another common choice of law principle is to apply the law of the place that has the most significant connection with the events at issue. A third common approach is to apply the law of the place where the legal obligation arose.” (46).
Trachtman proceeds to write that frequently, those that are brought to trial state that it is no one’s business to put them there. Ad hominem tactics are also frequently used: this is also known as “tu quoque.” There is then the principle of in pari delicto: “The rationale of this principle is to prevent one joint wrongdoer from suing another for damages that resulted from their shared wrongdoing. The idea is that courts should not be available to reallocate loss between wrongdoers. The in pari delicto defense might be used when there are multiple parties involved in a fraud and one party tries to sue the other for the first party’s losses.” (51). Yet another tactic used is that of ripeness: sometimes, lawyers would inform that the defendant had not done any wrong so far, and that they probably wouldn’t do so in the future (think of verbal threats). Closely linked to the concept of ripeness is that of lesser remedies: before the plaintiff goes to a high court, it is sometimes seen whether there are better (that is, less time-intensive) answers. This is especially true when it comes to international law concerning human rights: “The exhaustion of less escalated means of dispute settlement, here called the requirement of exhaustion of local remedies, asks that the human rights claimant or investor go through the domestic courts first to see if they can get the appropriate treatment, and only after exhausting that avenue, move to the higher level of international dispute settlement.” (54). This concept can be helpful in everyday life: you may inform others that if they are to complain about you, it should be to your face, not to others, seeing that if they really wanted you to fix your behavior, they would’ve let you know to save time. When it comes to pursuing a case, the statute of limitations is an extremely important concept: it states that some misdemeanors shouldn’t be revisited over long periods of time. Expectedly, this only applies to certain crimes: murder, for instance, can always have its own case, even if the trial takes place years after the incident. Trachtman elaborates, “In any argument, who will win may depend on who has the burden of bringing forth evidence of his position (burden of production), and who has the burden of persuading the decision-maker of the correctness of his position (burden of proof) … The burden of proof is a heuristic that says we will leave things as they are unless the person to whom the burden is allocated is able to prove that he has a right to a different determination. The standard of proof, on the other hand, determines how good a case the person who bears the burden of proof must make. You might say that the burden of proof is like a presumption: we presume that things are best left as they are unless the person assigned the burden shows us differently … Presumptions are a special type of allocation of the burden of proof; the proponent of the presumed fact need present no evidence, and the opponent of the presumption must provide evidence that it is not true.” (57-8). Of course, the concept of presumption isn’t largely practiced today, though it was widely held as a common tenet of law in the past. Today, the one claiming to be wronged must have a substantial amount of evidence: the defendant is innocent until proven guilty. Another tactic is asking the opponent how you are exactly wrong (ex. how your position is a danger to others). Trachtman eventually explores the concept of repose: “once a decision is made, it is good for people to be able to rely on it. Get over it and move on.” (63). Then there’s Res judicata: once a case has been decided by a jury, it can’t be done once more. Collateral estoppel is a similar concept, seeing that it states that minor issues in a decision that were dealt with can’t be revisited. And then there’s using an extensive strategy/procedure to give your case credence: a potential weakness to this tactic is how long the process may take. The said extensive strategy generally involves having your opponents say what they want to say, as taking their views, considerations, and words into account will only bolster your credibility.
Trachtman proceeds to discuss how lawyers interpret words. He begins with the acknowledgment that “It is useful to have clear rules about how our laws and contracts will be interpreted so that skilled draftsmen can express commitments clearly, precisely, and predictably.” (68). The rule of effet utile states that using different words is an effective tactic of conveying different definitions, which can potentially get around hindrances such as that of repose. To present well, using words that are easy to understand is a good place to start. “This does not mean that the words used are necessarily insufficiently specific-it may well be, and it often is the case, that the reasonable interpreter, applying common knowledge, finds only a single meaning. Strategic players will often argue about the plain meaning even where the meaning is sufficiently clear for disinterested persons. This is why the institution of courts initially arose-to frustrate strategic argument where the parties really did address the matter with sufficient specificity in advance. Where the words are sufficiently specific to decide the matter, there is no problem.” (71). As expected, there is no guarantee that the words used would be safe from criticism or manipulation, even if they are very specific, seeing that dictionaries are allowed at court and words can have multiple definitions. Another strategy is to simply infer what the original intents of the documents are, and to interpret them accordingly. This is best seen in how the U.S. constitution is viewed today, especially the part about the right of citizens to own arms. There are three kinds of intent: subjective original intent (“what the authors had specifically in mind”), objective original intent (“what the words that the authors used generally meant at the time the authors used them”), and objective original intent with intended evolutionary change (“what the words that the authors used generally meant at the time the authors used them, but also assume that the authors intended for their words to develop new meanings as the world changed over time and language in common contemporaneous use adapted”) (74). All three of these methods have the same purpose: to interpret the desire of the author of the document. Trachtman tellingly states that a major problem with originalism is that those in the past who wrote the laws couldn’t have foreseen the future, as they lived in the past. For instance, when the Founding Fathers wrote that people could own weapons, they did so during a tumultuous time of nation-building when America was quite vulnerable, not in a time period that saw America as an economic powerhouse with a mighty military. As he put it himself, “One problem with originalism generally is that, over time, the original understanding becomes less able to address current problems. Remember that texts are always incomplete-they don’t address every contingency that might occur. What’s more, over time, our texts tend to become even more incomplete; the world changes in ways that are increasingly unanticipated.” (75). To reiterate, there is the problem of guns: “let’s consider the U.S. Constitution’s Second Amendment right to bear arms. If the original intent is considered to protect the right to bear the arms that were available in 1897, then people would only have the right to bear muskets because that was the only type of firearm available at that time. Modern firearms, using integrated bullets instead of balls and shot, and having magazines or other multiple shot mechanisms, would be excluded from the right to bear arms. There were no assault weapons in 1787.” (78-9). Also adding to this purpose is context: knowing what time a document was created is vital to understanding it for what it was meant to do. Another fact that should be noted is that when lawyers are in court, everything they say (even if informally) could be later used against them (I know this sounds obvious, but remember that this includes informal words as well), including their preparatory materials: “drafts, letters, memos, etc., can be used as evidence of the meaning of the document negotiated. It is possible, in a contract or perhaps in other documents, to insert a clause (called an integration or merger clause) stating that this is not permitted-that the contract itself is the total and exclusive expression of the agreement between the parties. Often, there is some inconsistency between what is promised formally and what is said informally. Additionally, there may be some inconsistency between what is said at one time and what is said at a later time. Arguments can arise about what is the ‘real’ deal-whether the original deal was changed, and whether it could be changed by later (or earlier) discussions.” (83).
“The parol evidence rule … holds that if two parties make a contract, and if they demonstrate the intent that the contract is the final and complete statement of their relationship, no prior or subsequent additional communication, whether written or oral, can be used to show a modification or a different meaning of the contract … The basic point here is that if you intend a special meaning or a special deal that does not appear in the contract itself, you are unlikely to be able to rely on it in litigation.” (84-5). This principle is frequently exploited by salespeople: they would lie about benefits that don’t appear in the contract, and since those who are tricked have little to no evidence to prove what they had been told by said salesperson, they would probably lose the case: the “company’s legal department … supplies the salespeople with a form contract that will specify that informal modifications are rejected, and the only warranties are the written ones provided within the contract. The law department’s language will likely be effective to protect any overzealous salespeople, and the company, from responsibility and to deny customers the rights or protections they might have been told separately they would receive.” (85). “Extensional pruning” is when a description is intentionally made vague in order to save face (this is practiced not only by lawyers for previous mishaps, but also by politicians who were caught doing amoral things). To give a specific instance, when Bill Clinton said that he did not have sexual relations with Monica Lewinsky, his phrase “sexual relations” was intentionally made to be very undescriptive: those who supported him can interpret that even if he was sexually involved with Lewinsky, it might not’ve included intercourse. Trachtman specifies, “One of the essential functions of lawyers is to identify wiggle room like this in contracts, statutes, and treaties and to eliminate it. It takes a careful, imaginative, and suspicious turn of mind to do it well … it is best for the person owed the obligation to preempt extensional pruning by paying close attention to the accuracy and precision of the contractual words. In negotiations, the person owing the obligation might seek to maximize the scope of potential extensional pruning.” (86). There is then the conflict between procedural and substantive (that is, moral) justice: sometimes morality can play a large part in determining the outcome (ex. civil disobedience and peaceful protests). For instance, Socrates was sentenced to death for “corrupting” the youth of Athens and refused to escape, even when he was offered a way to do so, “responding by pointing out that he had lived in Athens as an Athenian citizen, accepting all of the benefits of its government and laws. On this basis, he had a type of ‘social contract’ obligation to continue to accept Athens’ laws and legal judgments. He saw this as a moral obligation, even if the judgment at hand was itself immoral. Thus, for Socrates, and Plato, the law has its own morality, even when its results are immoral.” (90). Trachtman then remarks that “This idea is related to the point made earlier in this book that procedural justice may at times outweigh substantive justice. But it cannot be carried too far: the greater the substantive injustice, and the greater the certainty of substantive injustice, the more difficult it becomes to argue that there is an obligation to comply with an unjust law.” (90). Of course, the conflict between substantive and procedural justice is a complicated and tricky one: what’s needed is open-mindedness and a sense of fairness on the part of the jury. There is also effet utile, which is French for “useful effect”: it “is an assumption that is made in interpretation of legal rules or contracts to the effect that the author of the legislation, contract, or treaty meant to accomplish something by the words used. It rejects an interpretation that would make a word or a provision ineffective. Without this assumption, it might be open to a party to argue that the rule as specified does not actually bind any conduct or cause any results. The effet utile rule forecloses such arguments.” (90-1). The “British Rule” of interpretation states that statements should not be absurd: this is quite unreliable, seeing that what may be insane for one person can be understandable for another (ex. a bigoted racist who lived two centuries ago and a modern individual on their thoughts on slavery). Another important method of interpretation is lex specialis (hearkening from the phrase lex specialis derogat lego generalí, or “special law repeals general laws”): “when faced with a conflict between rules, choose the one that applies more specifically to the facts. This approach assumes, perhaps heroically, that we can distinguish between greater and lesser specificity. The assumption behind lex specialis is that the more specific provision was more tightly reasoned and more tightly tailored to the subject, compared to the less specific provision … Jeremy Bentham … said, ‘the particular provision is established upon a nearer and more exact view of the subject than the general, of which it may be regarded as a correction.’” (95). Then there’s expressio unius, which came from the phrase “expressio unius est exclusio alterius,” “meaning that the express mention of one thing excludes all others. It recognizes that positive statements can serve as the basis for negative inferences, and it works like this … That is, listing some things of a particular type and omitting other things of that type is presumed to be intentional. As you can see, it is motivated to some extent by the same idea as the effet utile principle-we assume that draftsmen know what they’re doing.” (97). A complement of expressio unius is ejusdem generis, which limits the scope of a category if it is general. As stated before, expressio unius relies on certain assumptions, including the fact that those who wrote the document did everything intentionally, thereby rendering it greatly dependent on context. Trachtman then elaborates: “Two abbreviations are relevant here: i.e. and e.g. ‘I.e.’ is an abbreviation for the Latin words ‘id est,’ which means ‘that is.’ ‘E.g.’ is an abbreviation for the Latin words ‘exempli gratia,’ which mean ‘for the sake of example.’ Their effects differ dramatically. ‘I.e.’ indicates that what follows is a paraphrase of the prior clause, while ‘e.g.’ means what follows are examples of a broader covered category. ‘E.g.’ implies an incomplete list-that other things in the category are intended. So, ‘i.e.’ allows an expressio unius argument, while ‘e.g.’ blocks the expressio unius argument, as a somewhat less explicit alternative to saying ‘including, without limitation.’” (99).
Trachtman then provides a list: Reductio ad Absurdum, the Camel’s Nose, the Slippery Slope, the Parade of Horribles, and the Thin Entering Wedge. He states that all of them are illogical and seek to make one’s opponent’s position seem dangerous to society: “I will refer to them all as ‘reductio ad absurdam,’ because that is the most common term for the ploy … This ploy points out the consequences of generalization of an opponent’s position. In this sense, reductio ad absurdam is based on an assumption of consistent treatment of like cases. It is an effective tool in the legal system where, as is addressed in greater detail in Chapter 5 below, consistency is a core systemic value.” (104). This is a very effective piece of persuasion due to how it applies to many of the current issues today: for instance, some people may say that a wall should be built to keep immigrants out. Seeing that this statement is quite general, the opponent of said proponent may argue that to keep all immigrants out, the wall should completely envelop America, seeing how the previous statement espoused a negative view of immigrants in general. The principle of reductio ad absurdam can be carried to extremes, such as stating that if something was legalized (ex. abortion and euthanasia, still two controversial topics, for some reason - in my opinion, people have the rights to their lives and their bodies, as self-determination without harming others should be a human right - furthermore, while some may argue that killing a fetus/unborn human is morally wrong while going on a tangent on the “sanctity of life,” I would just like to point out that if they eat meat - consuming the dismembered corpse of a tortured and abused animal - they have no right to speak about how “precious” life is, especially seeing how abortion only involves humans, not other animals who are frequently and unfairly viewed as being “inferior”), there will be an epidemic of terrible events. When it comes to dealing with the camel’s nose and the slippery slope, a great response is pointing out historical incidents that clearly demonstrated that going against the norm could be a great idea (for instance, those who opposed abolitionists and women’s suffrage said that society could collapse, as the economy relied on slaves and women were supposed to stay at home to only act as incubators - while these opinions may sound stupid to many today, they were in fact extremely popular in the past, clearly illustrating that just because many people believe in something doesn’t mean you should too). Trachtman proceeds to discuss arguing from precedent: consistency in laws is needed for the precedent to be even considered. He further writes, “We can think of a body of recorded or remembered precedent as a vast storehouse of social knowledge-knowledge of how we dealt with these issues in the past. It can be a powerful argument that the treatment you propose is consistent with precedent, both in order to maintain a rule-of-law-based society and in order to benefit from earlier analysis. Some types of decisions will benefit from adherence to a principle of conservatism: the burden of proof is on those who seek change. This principle is expressed in the aphorism, ‘if it isn’t broken, don’t fix it.’ You might say that those who seek change must show that something is indeed ‘broken.’ Adherence to precedent is not just about consistency or the rule of law. It is also about information and experience. In a number of pursuits, we say that there is no substitute for experience.” (112). Trachtman compares how laws change over time in a process that can definitely be compared to evolution: they have to adapt to new times and situations. Trachtman soon talks about the ratio decidendi (“the rationale for the decision”), connecting it to Occam’s razor, a principle “which suggests that the simplest explanation of a phenomenon-the one that requires the fewest assumptions or conditions-is likely to be the correct one. Occam’s razor is not a firm rule of logic, but a guide to decision-making under uncertainty. In a legal context, looking at a particular set of cases-we might compare cases to observations in science-the common threads that are both necessary and sufficient to explain all of the observations can be understood as the ratio decidendi.” (115). Trachtman then provides the definition for sartre decisis (“binding precedent”): judges can’t revisit or redo previous cases. However, when it comes to sartre decisis, sometimes lawyers can find key distinctions to separate the present from the past case, thereby allowing the present one to go through a jury. This is yet another instance of framing: how a case is presented will affect its entire history. And then there’s obiter dictum (“incidental remark”): “When a court decides something it does not yet need to, or articulates an opinion that is not logically necessary to its disposition of the case, it is seen to be exceeding its mandate to decide cases as it becomes necessary to do so. To enunciate a general rule that is not necessary to decide the case at hand and to reconcile the decision with prior cases, violates this principle … The idea of obiter dictum is a requirement for judges to walk the walk, not just talk the talk, when they engage in precedent-based judicial legislation. While judges often feel the need to be eloquent, and to speak of high principles, it is the job of the case law analyst to ignore all that and try to focus on the facts and the resulting ratio decidendi.” (118-9). The concept of exceptions that swallow the rule involves rules that are so frequently disobeyed or ignored that it doesn’t do one any good to examine them. For instance, in 1933 the U.S. Glass-Steagall Act was passed, which definitively made commercial banking belong to a separate category of finance than investment banking and activities that didn't revolve around banks. While it was never actually repealed, “over the years, it was eviscerated by a series of amendments culminating in the 1999 Graham-Leach-Bliley Act.” (120). If a tough court case has no earlier precedent, a potential strategy is stating that the current case will be a precedent for the future: for instance, Brown v. Board of Education allowed white and black children to go to the same schools. While it was very controversial (and had no precedent, seeing that segregation reigned supreme over many areas of life, not just education), it is now viewed today very positively, as it was a landmark victory in the noble journey for civil rights.
When it comes to judges making decisions, sometimes they may refrain: Trachtman denounces their inaction as action in of itself, seeing that they are preserving the status quo and holding the answer to a vital question suspended in time. Trachtman discusses footnotes once again: “Lawyers have a love-hate relationship with footnotes … we must lead the other, by mustering and displaying information, by anchoring our arguments in precedents, laws, and facts, ineluctably but voluntarily, to come to the same conclusion. Once we understand the proper role of citations in displaying the basis for statements, it is difficult to criticize the modesty, and honesty, that footnotes evince. Citations allow the reader to see, and to evaluate for himself, the quality of the support for the author’s statements. The reader can see the pedigree of the information on which the author relies. It is possible for an author to build up a great superstructure of argument on a slender base of authority. “ (125). Trachtman states that facts are facts, and can’t be changed at their core by lawyers. To begin, facts are supposed to demonstrate whether a law has been broken or not. Causation is a relationship that is extremely important in the field of law, and can be made relatively complicated: “the legal perspective on causation is easiest to see in relatively simple cases of tort or crime. A child runs after a ball into the street without looking and is struck by a car … What caused the injury to the child? Who is responsible? Is it the child himself, the child’s parents, the driver of the car, the thrower of the ball, the manufacturer of the car, or the designer of the street, or shall we blame this tragedy on the act of a cruel deity, leaving the child’s parents with no recourse? You can readily see the circumstances under which any of these might be thought responsible, but we normally assign primary blame to the driver of the car. If you focus on the child running into the street, it is easy to see that causation is in a sense reciprocal: if the child had not run into the street, there would be no harm; if the driver had stopped, there would be no harm. If the parent had monitored the child more carefully, there would be no harm.” (130-1). Trachtman further details, “One type of question about causation is whether a person-in order to be found responsible-must be the sole cause, a sufficient cause when there are other contributing causal factors, an necessary cause, or a contributing but not sufficient cause. Sole causation means that the causal factor must be sufficient by itself to cause the relevant effect, and no other causal factors contributed. Sufficient causation means that even if other causal factors contributed, the causal factor in question was sufficient by itself to cause the effect. Necessary cause is sometimes referred to as ‘but-for causation,’ meaning that but for the causal factor, the result would not have ensued.” (131). Adding to the concept of causation is statistics and factors that correlate with a phenomenon, seeing that they could definitively support a certain position (ex. since smoking increases the risk of developing cancer and lung disease, cigarette packs should have labels on them warning of the risks). When it comes to evidence, primary evidence is to be valued over secondary evidence: for instance, if you claim that you own something, you can produce the check that proves it instead of asking the cashier who oversaw the financial transaction to testify in court. Another point when it comes to evidence is the fact that not all evidence can be used: evidence that can be easily fabricated are not allowed to be used, as well as evidence that was obtained illegally. There is also estoppel: it “literally means to ‘bottle-up’ or prevent, and it prevents parties from arguing or asserting certain facts … The main idea here seems to be reliance and repose: once you have had a chance to make a statement or to correct a misunderstanding, you are thereafter estopped from doing so. One important example of estoppel is in the law of letters of credit. Letters of credit are important mechanisms for making payment and for financing. Once the beneficiary of a letter of credit demands payment, if the bank that issued the letter of credit accepts the demand or waits more than the specified number of days, the bank may be estopped from claiming that the beneficiary did not properly satisfy all the conditions for payment. The rule of estoppel in this context has two purposes. First, estoppel allows the beneficiary to rely on the bank’s acceptance of the demand for payment or on the specified passage of time, which might be construed as acquiescence. Second, it discourages banks from trying to find problems in the beneficiary’s demand for payment should the bank communicate with its customer … and learn that the customer was dissatisfied with the beneficiary’s goods and preferred not to pay for those goods.” (136-7).
Trachtman proceeds to discuss rhetorical tricks. He states that rhetorical tricks are generally seen as dishonest and disingenuous: however, the reason he’s explaining them is not to encourage the reader to use them themselves, but to recognize and counter them if (or more appropriately, when) they are faced with them. The first term to be discussed is non sequitur, which is basically an unrealistic sequence of events. Ad hominem attacks are verbal assaults on the credibility of the opposition. Then there’s post hoc ergo propter hoc, affirming the consequent, correlation versus causation, and omitted variable bias. Post hoc ergo propter states that that which preceded the incident being described caused it, which is frequently false (ex. if you trip on the ground two minutes after using the restroom, this doesn’t mean that defecation will cause people to potentially injure themselves). Affirming the consequent means believing that something which you are currently experiencing was caused by an event known as the antecedent: there is very possible no correlation or relationship of causation between the two events. Events that correlate with other phenomena are not guaranteed to cause it (ex. those who are depressed may frequently drink - while depression can definitely drive a person to escape from reality in drink, it’s also quite possible that they’re depressed precisely because they’re an alcoholic). Omitted variable bias is when circumstantial evidence is used to counter an argument: coincidences do happen. As Trachtman describes, “If we observe a man driving a car that was previously stolen, this does not mean that he stole the car. Similarly, the fact that a man is not driving the car does not mean that he did not steal the car. Driving the car is neither a necessary nor a sufficient basis for inferring that the man stole the car. While circumstantial evidence may be logically insufficient, an accumulation of different types of circumstantial evidence may be sufficient in ordinary experience, and even in court, to prove causation. For instance, if we find the victim’s blood on a suspect’s shoes, if the suspect owned the murder weapon, and if the suspect had a strong motivation, reasonable people might conclude that the suspect is guilty. Each of these facts by itself is circumstantial evidence.” (146). This has a direct connection to improbable and misguided inferences: this in turn is related to Occam’s razor. While Occam’s razor is quite effective in certain cases, it’s also prone to error, which makes over-reliance on it a bad strategy. Another devious strategy used to gain an unfair advantage is placing assumptions within questions (ex. if you’re asked what you did in a court that is hearing a case of potential thievery of what you did when you left the house, and the inquisitor is relatively aggressive and includes the phrase “looking for trouble,” you know they’re implying that you are guilty). Trachtman himself writes, “It is sometimes possible to sneak an assumption into an argument by embedding the assumption in a question or in an unrelated statement. If this rhetorical ploy goes unnoticed, then the assumption goes unchallenged.” (150). Trachtman proceeds to discuss responsibility: if the defendant tried to help someone but accidentally hurt them (this is known as the Good Samaritan Law), they may not be punished, seeing their good motives. This also extends to the concept of negligence: if someone hurts someone else by accident, even if they are punished, they’re very likely to be given a more lenient sentence. Trachtman then discusses force majeure, or exceptional/bizarre/extreme circumstances: extreme events can cause the court to rule in favor of a certain side (ex. if someone steals medicine to save their spouse or pet because they can’t afford the money). Trachtman moves on to discuss lawyers. Lawyers (1) never want to apologize (seeing that doing so can be read as an admission of guilt or failure), (2) are flexible with words (again, interpretation of the same word), (3) recognize that the defendant generally has to produce most of the evidence and to fight for their side, especially if they want to challenge the status quo, (4) observe the situation carefully to gather up evidence and to think freely (Trachtman writes that lawyers are skeptics who are open-minded, seeing all the evidence they will have to work with and analyze), (5) refrain from verbal contracts (a popular phrase says that verbal agreements are not worth the paper they’re written on, and another states “faintest ink over sharpest memory”), (6) are careful of human nature (think of selfishness, greed, betrayal), (7) are capable of questioning and challenging their potentially erroneous assumptions and convictions, and (8) maintain their own reputation and thus, their credibility (if you as a lawyer win a case by tarnishing your reputation and being overly aggressive, this can definitely hurt future cases). Trachtman describes that “Legal argument, dispassionate in nature, is based on reasoned persuasion, and the reasoning is based on the legal analytical technique. This analytical technique always involves determining what rules apply … There is always room for argument, either about the effects of competing rules or about the intended scope of the proposed rule. There is also room for innovation-for identification of rules that might not obviously or conventionally be seen as applicable but that may be implicated by the observed facts … Whether the rule comes from a contract, a statute, or a treaty, it can always be broken down into a basic ‘if-then’ statement … the legal analytical technique is simply to evaluate the facts in order to determine whether each element is satisfied … Consistency is essential to a legal system, indeed to the rule of law, to fundamental fairness, and to a free society … In order to determine whether an action is consistent with precedent, we must determine the ratio decidendi-the essence-of the precedent. This is done by analyzing the precedents into ‘if-then’ statements, determining the elements that were consistently required to be satisfied in the ‘if’ component, and using those elements to decide the case at hand.” (176). Trachtman writes of the effectiveness of Occam’s razor, and ends with the following sentences which can be read as inspirational: “At the core of the vocation of law is recognition that procedural rules are important, both strategically and substantively. Strategically, we know that the choice of procedural rule, such as burden of proof, statute of limitations, or standing requirements, can determine whether one wins or loses in a dispute. Substantively, we know that any decision can be attacked on the basis of the procedure by which the decision is made. It is this sensibility that makes lawyers good managers. Lawyers learn to suppress their biases and reflexes in order to follow an appropriate procedure that will be reliable and that will be seen to be legitimate. Lawyers recognize that procedural justice is a real value, and that it can outweigh a sense of substantive justice. This recognition is essential to the rule of law and to a liberal society.” (177). The book also contains a glossary with legal terms at the back.
Personal thoughts:
The Tools of Argument: How the Best Lawyers Think, Argue, and Win by Joel P. Trachtman is a fantastic, informative book. Not only does it provide the reader with a significant number of terms and persuasive strategies, but it also addresses the concepts of being a lawyer, the field of law, and the subject of fairness as well, clearly showing Trachtman’s expertise to discuss law and those who practice it. The book itself is relatively short, but that doesn’t take away from the fact that it’s worth reading, especially seeing how Trachtman does include some humor in his writing, not to mention examples while following an organized format. I highly recommend The Tools of Argument: How the Best Lawyers Think, Argue, and Win to anyone interested in lawyers, law, justice, change and continuities over time, and juries.
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