The Tools of Argument: How the Best Lawyers Think, Argue, and Win

by Joel P. Trachtman

A pat response to the question “what is law” is “law is what judges apply to disputes.”

Second, those seeking to comply with and utilize the law, including but not limited to lawyers, need to know in advance of adjudication, which rules are part of the system and which are not.

So, we might think of law as a set of formal rules that carry the sanction of the state.

The force of the state is deployed to restrain the force of individuals.

Second, law facilitates relationships in our increasingly complex society.

Law, like taxes in the words of the great judge Oliver Wendell Holmes, is the price of civilization.

Law is concerned with the allocation of responsibility, and you will from time to time need to argue with others about their responsibilities, as well as about yours.

Thus, the force of the state will be applied, in accordance with the law, to prevent violence, theft, fraud, and other bad and inefficient behaviors.

These texts—contracts, statutes, constitutions, and treaties—are not just words, but words that carry the force of the state.

Law is important because, in a society based on the rule of law, it channels the force of the state.

the work of the lawyer is to argue about and determine what the applicable law is, what the facts are, and how the facts fit into the applicable law.

In general terms, we can say that lawyers analyze and argue about what the rules are and how they apply to particular situations.

the worst of whom sought to “make the weaker argument appear the stronger.”

The true stronger argument is the argument that meets some objective test of strength, and that should win. But,

By making the weaker argument in this sense appear the stronger, lawyers or other sophists may subvert first principles, truth, or public policy.

Unfortunately, greater preparation can also make the weaker argument appear the stronger.

All laws, and all contracts, are inevitably incomplete.

They cannot be written in advance specifically to anticipate every possible circumstance.

the essence of thinking like a lawyer, what I like to call “the art of reasoned persuasion.”

First, a large part of law school in common law countries, like the U.S., is devoted to learning to argue about whether a given precedent governs a new fact situation.

I only learned most of what this book contains after law school.

Lawyers break legal questions down into components, or elements, of a crime or of a claim, and then analyze each component separately.

Important

As you review any legal document, your main concern should be whether these “if-then” statements are clear and if they do what you need them to do.

Extensional pruning. Initial use of words in the sense of their commonly accepted meaning and subsequent switch to a narrower definition in order to avoid obligations or refutation.