LEGAL REASONING AND

METHODLOGY
Created @December 4, 2022 7:54 PM

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NHẬN ĐỊNH - TRUE FALSE

The facts of a case suggest an issue.
TRUE.

Issue is the subject matter what facts and circumstances brought these parties
to the court.

The key to issue spotting is being able to identify which facts raise which issues.

The elimination or addition of one fact can eliminate or add issues to a case.

Critical thinking is the only skills necessary for the study of legal reasoning.

FALSE.

Critical thinking skills ⇒ essential skills

General and specific language skills

Intellectual and technical skills

Argument construction

In narrow sense, legal reasoning is the arguments that judge five, frequently in
written form, in supoprt of the decisions they render.

TRUE.

An inquiry into the “logic” judical decision.

A thesis statement is a sentence (or two) that states what you are going to do
in your essay.
TRUE.

LEGAL REASONING AND METHODLOGY 1

 A kind of signpost that tells you where t go - or a map that shows the reader what
direction your paragraphs will take.

The question presented defines the issue that the memorandum is intended to
resolve.

TRUE.
The question presented states the questions the memo is address: how does the
relevant law to the key facts of the research problem.

CÂU HỎI - OUTLINE

Why we should study legal reasoning?
Broad sense:

The psychological process undergone by judges in reaching decisions in the

case before them.

The study of judgical psychology and biography

To know judges and their psychology

To understand what impacts judges decisions.

Narrow sense:

The arguments that judges give, frequently in written form, in support of the
decisions they render

An inquiry into the “logic” of judgical decision

It concerns what kind of arguments judges give

To identify the relationship between the reasons and the decisions, the adequacy
of these reasons as support for the decisions

To apply this knowledge to your career.

What is the IRAC formula in legal reasoning?

Issue (subject matter) - facts and circumstances brought the parties to the
court

“The facts of a case suggest an issue”.

The key to issue spotting is being able to identify which facts raise which issues.

LEGAL REASONING AND METHODLOGY 2

 The elimination and addition of one fact (time of day…) can eliminate or add
issues to a case there by raising an entirely different rule of law.

Rule (major premise) - governing law

“The issue is covered by a rule of law”.

The rule is the law:

Common law (developed by courts)

Statutory law (passed by the legislature)

The overall question regarding the discover of rules is that what elements of the
rule must be proven in order for the rule to hold true. ⇒
Elements are the logical
pieces composed of the rule.

The law is based on existing rules. An argument has no weight unless it says
exactly which rule is being relied upon ⇒
cite the rule.

Analysis (minor premise) - the rule apply to these unique facts

“Compare the facts to the rule to form the analysis”

There are lots of facts that make up the client’s story.

For the purpose of analysis, we look for “material facts”. ⇒ facts that fit the
elements of the rule

For every relevant fact:

It is necessary to aske whether the fact helps to prove or disprove the rule.

If a rule requires that a certain circumstance is presented in order for the rule
to apply, the absence of that circumstance helps us reach the conclusion
that the rule does not apply.

Conclusion - how does that court’s holding modify the rule of law

The shortest part of equation.

It can be simple “yes” or “no” as to whether the rule applies to a set of facts.

How to summary a case?

The cases that you will read are the written opinions of trial and appellate court
judges explaining their decisions in the lawsuit. Case briefing is an aid in reading and
understanding court opinions.

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 The case summary should always contain a full and coherent recitation of the
relevant facts, whether or not the principal reader of the memo already knows
them.

In your case summary, be sure to specify what legal claims are being considered
or are being brought, and be sure to describe any legal proceedings that have
already taken place.

Name:

Write the name of the case at the beginning of your brief so that you will be able
to identify it later.

Be sure that you can identify who sued and who was sued as you read through
the case.

Facts:

Briefly summarize the facts of the case. Facts are the “who, when, what, where,
and why” of the case.

Bear in mind that the busy law-trained reader will value conciseness, so try to
present only those facts that are legally significant or that are necessary to make
the problem clear.

Do not merely copy the facts verbatim; not every detail is important. Instead,
include only the relevant facts. To decide which facts are relevant, ask yourself
whether a particular fact was important to the court’s decision.

You should also look for facts that are repeated at least once in the court’s
opinion since these tend to be legally relevant.

Issues:

The issue is a statement of the question of law that the court must answer in
order
to decide which party should win. A case may involve more than one issue.

Sometimes the court will directly state the issue in the opinion. If so, then you
can quote the court’s statement of the issue in your brief.

In most cases, however, you will need to write your own statement of the issue.

Holdings:

The holding is the answer to the issue. If there are multiple issues, then you
should state a holding for each issue.

LEGAL REASONING AND METHODLOGY 4

 The holding succinctly states the court’s ultimate conclusion, but does not fully
explain the conclusion.

Doing this will ensure that you directly answer the issue and provide a brief
reason for the court’s conclusion.

Rationale:

The rationale is a summary of the reasons that explain how the court reached its
decision.

The goal for this part of your brief is to understand how the court used the rules
of law to resolve the dispute.

How to define law applied in a case?

You need to know the statutes and regulations that apply to your case. Then, you
need to try to find a case or cases from the past with facts and legal issues similar to
your case and look at their outcomes and how the courts applied and interpreted the
relevant statutes and regulations to the facts in those cases.
There is no one way to do research, but here are some common practices that will
help you research in an efficient and effective way:

Try to figure out what the case is about from a legal point of view. What legal
issues will you need to research?

Find a research guide to help you sort through all the material that is available.

Find the rules on how to create and understand legal citations. The court will
need to know where you got your information, and there is a whole set of rules
about how to explain that.

Find and read secondary sources to get a basic grasp of the area of law related
to your case and your specific issues.

Move to primary sources and look up statutes, regulations, and cases related to
your case. You can often use the annotations at the end of the statutes to find
cases.

The law changes rapidly and often. You may find a perfect case and find that it was
later overruled or reversed. The statute you are relying on may have been amended
or repealed. Find a way to update your research before you tell a court that the law
you are relying on is still “good” (valid) law.

LEGAL REASONING AND METHODLOGY 5

 Once you have completed and updated your legal research, you have to include it in
your written documents that you file with the court. You will have to explain what your
legal authority is, where it is located, and how it supports your case. You may also
have to explain why a given legal authority does not apply to the specific
circumstances in your case.

What are the questions to ask when read a case?

When reading a case you should be noting various pieces of information, in
particular: the case name; the citation; the court deciding the case; what was the
issue in the case; what decision did the court reach in the case; and how did the
court arrive at its decision.

How do you prepare an oral argument?

Prepare 2 versions of the same presentation:

One includes the material that you must argue - in other words, the core of
your case - and, when delivered without interruption, it should fill no more
than 30 to 35% of the time you are allowed.

One is an expanded development of the first. It includes the first version, as

well as supplemental material that makes the core of your case more
persuasive,, able time.

You will know within the first three or four minutes of the argument whether the
bench is hot or cold:

Hot: deliver the core presentation and work the supplemental material into
your answers.

Cold: deliver the expanded argument.

Plan your argument by weaving together policy, the facts, and the controlling
rules of law into a seamless theory.

Make a list of every weakness in your case and every question that you would
therefore ask if you were a judge, and prepare an answer to each of those
question.

Try also predict which concessions you will be asked to make. Figure out which
concessions you cannot afford to make and which you will have to make in order
to protect the reasonability of the rest of your case.

LEGAL REASONING AND METHODLOGY 6

 Practice making your argument to a person who will ask tough questions but
who know little about your theory of appeal.

Prepare notes to use at lectern

What are deductive arguments?

Begins with a general proposition and ends with either a general or particular
proposition.

General-to-general reasoning ⇒ Not used in legal context.

Premise 1: All mammals are warm blooded

Premise 2: All dogs are mammals.

Conclusion: All dog are warm blooded.

Categorial syllogism (general-to-particular reasoning) ⇒ apply legal principles to

a particular case

Major premise: All human beings have the right to life.

Minor premise: Mr Nelson is a human being.

Conclusion: Mr. Nelson has the right to life.

What are inductive arguments?

Begins with a particular proposition and ends either a general or particular
proposistion.

Reasoning by generalization (particular-to-general reasoning) ⇒ Create

appellate case legal principles (popularly used in the common law system >< VN
- not popular due to the features of continental law system wich is characterized
by written law)

Premise: Appellate case held that a contract with a vague term was void

Conclusion: All contracts with vague terms are void.

The case law principle will never be certain, but will remain subject to
exceptions and modifications.

Modifications to the principle occur whenever a new appellate case (new

stature or constitutional amendment) deals with the enforceability of
contracts with vague terms.

LEGAL REASONING AND METHODLOGY 7

 Reasoning by analogy (particular-to-particular reasoning) ⇒ select relevant legal
principles to be applied.

Which is more similar?

Which similarity/difference is more important?

What is predictive writing?

Two purposes: advise client and plan litigation.

The legal memorandum:

Most common type of predictive

May include client letter or legal opinion.

Functions:

Predict the out come of a legal question by analyzing the authorities

governing the question and the relevant facts that gave rise to legal question

Explain and apply the authorities in predicting an outcome, and end with
advice an recommendations

Serves as record of the research do for a given legal question.

What is persuasive writing?

The most rhetorically stylized, framed as an argument.

Argue for one approach to resolving the legal matter and does not present a
neutral analysis.

Function:

Persuade a deciding authority to favorably decide the dispute for the

author’s client, usually submitted to judges (but also to mediators,
arbitrators)

Persuade the dispute’s opposing party

What is the difference between predictive and persuasive

writing?
The elements of predictive and persuasive writing will be the same. Both must:

include all the relevant facts

accurately state the law

LEGAL REASONING AND METHODLOGY 8

 cite supporting and unfavorable precedents.

The tone, word choice, sentence structure, organization, and emphasis in predictive
and persuasive writing differ greatly:

Predictive writing uses neutral language while persuasive writing uses loaded
words to appeal to a reader's reason or emotion.

Predictive writing present the facts in a balanced fashion, while persuasive

writing often plays up the facts important to the client's position and plays down
facts that are less favorable.

Predictive writing discusses all sides of an issue while persuasive writing

emphasizes the arguments that support the client's position and distinguishes all
other arguments.

Neutrality doesn't mean you abandon the client's interests or goals. You still make
your best effort to overcome weaknesses and address counterarguments.

How to read texts about law effectively?

Preparation prior to reading

Locating texts

Ascertaining purpose for reading

Why I am reading this text?

What do I hope to get out of it

Prediction of use and content of text

Methods of reading

Skimming

Scanning

In-dept focused reading

Understanding what is being read

Guessing words that you do not know: Do not expect to know all the words you
read (even as a more extensive vocabulary is acquired)

Identifying main ideas:

Many main ideas will have been discovered on a first skimming.

LEGAL REASONING AND METHODLOGY 9

 A second reading begins the process of identifying the main points made by
writer. This aids in the acquisition of a deeper understanding of the argument
presented in the text.

Identifying subsidiary ideas: organize the information and classify secondary,

subsidiary points.

Identifying overall text organization:

Every writer has a different way of organizing, classifying and structuring

their work.

This need to be ascertained by any reader who wishes to break into the text
successfully.

Identifying whether the writer is outlining an area:

Discuss a specific problem

Propose a solution

Compare and contrast ideas

Speak of the present, future or the past

Evaluating what you are reading

Purpose

Arguments

Attitude

What are methods of reading texts about law?

Skimming: Read very quickly and generally through a text, noting:

Publication date: for the study of law, it is particularly vital to know which edition
you are reading; texts can go out of date due to changes in the law in a matter of
months.

Index

Foreword

Any headings and sub-headings

Author details

Introductory paragraphs

LEGAL REASONING AND METHODLOGY 10

 The first sentence or two of paragraphs following introductions

Look at concluding paragraphs.

⇒ Assists in deciding the potential relevance of the text.

Scanning: involves quickly looking for specific word, phrases or information.

In-dept focused reading:

Reading will allow attention to be given to secondary or subsidiary points in the

text.

The reading is slower and careful, check unfamiliar vocabulary.

Some words and phrases become clear as more text is read.

Note the type of language used, it presents certain meanings for evaluating the
texts (technical, figurative, journalistic, academic…)

How to evaluate what you are reading?

Ascertaining the purpose of the writer:

This is crucial

Inform you about something/try to persuade you of the correctness of a

particular POI

Often a writer will week to both inform and persuade.

Ascertaining the arguments of the writer:

Some text are complex not because they use particularly difficult words or
arguments

In order to understand full detail of the writer position, extensive knowledge of

the areas within or outside the particular discipline will be required.

Ascertaining the attitude of the writer:

You must at least know whether the writer is neutral or biased.

Writer usually biased towards a certain view in their writing, although on

occasion a writer may be neutral.

You must be able to gain skill in identifying a writer’s attitude to the ideas he or
she is discussing.

What is legal argument?

LEGAL REASONING AND METHODLOGY 11

 Arguments:

A series of statements, some backed by evidence, some not, that are purposely
presented in order to prove or disprove a given position.

Consist of 2 statements: the premise is claimed to be a reason for accepting the

other - the conclusion.

Sometimes used to refer to just the reason or set of reasons for a particular
statement.

Argument soundness:

A sound argument = a valid argument with true premises

Your syllogism is logically valid and you introduce evidence sufficient to prove its
premises.

An unsound argument = an argument which has one or more false premises, or

is invalid, or both.

Types:

Deductive arguments

Inductive arguments

Legal arguments:

Inductive generalization ⇒ create appellate case legal principles

Inductive analogy ⇒ select relevant legal principles to be applied
Deduction ⇒ apply legal principles to particular case
What are skills for argument?
Good argument construction:

Competent identification of nature of the problem

Competent of potentially relevant: legal rules + secondary text

Reading:

Competent reading, summarizing and evaluation of relevant texts

The drafting of potential solutions

Competent re-evaluation of problems and solutions.

Reflection as to conclusion

LEGAL REASONING AND METHODLOGY 12

 What is the structure of an oral argument?
Opening statement:

The first opportunity to outline the evidence to the bench.

Giving an overview - the big picture of the case:

Oral testimony is normally present during trial by a number of different

witnesses in a question-and-answer format

Difficult for judge to follow ⇒ easily get lost in the details and miss the
overall story

Developing argument:

Usually, the body of the argument begins most effectively with a statement of the
rule or rules on which your conclusion rests.

If two or more separate conclusion are being urged, the transition form one to
another should be clear the the listener.

Closing argument:

The opportunity to tell the bench why this particular party should win.

Closing argument give the valuable chance to help the bench fit the pieces
together and to convince them that the evidence presented at trial proves you
should win.

What are the differences between written and oral argument?

Criteria Oral Written

One-way passive
Nature Multiple-way active communication
communication

The type of communication in which

The communication mode,
the sender transmits information to
Definition which uses written or printed text
the receiver through verbally
for exchanging the information
speaking the message
- Overall goals area the same -
Goals
Specific goals are different

More professional - complex

Language More general
word

Content - Overview - Not detailed Detailed

(determinative points) - Respond to
the questions

LEGAL REASONING AND METHODLOGY 13

 - Body language - Facial expression
Supportive means
(eye contact) - Tones - Attitude - Not available
to persuade
Appearance (clothing)

Evidence of the
Hard to access Available/easily to access
argument

Flexibility higher lower

Impossible: the words once uttered

Possible: editing of the original
Re-check cannot be reversed
message
(misinterpretation)

How to evaluate your questions presented for persuasiveness?

The issue must be stated in terms of the facts of the case.

The statement must be eliminate all unnecessary detail.

It must be readily comprehensible on first reading

It must eschew self-evident conclusion.

It should be so stated that the opponent has no choice but to accept it as an

accurate statement of the question.

It should be subtly persuasive.

How points and headings work?

In a brief, point headings organize the Argument section into its primary and
subsidiary.

A point heading is a concise and conclusory statement about a legal issue

written in a
complete sentence.

Your point headings serve both organizational and persuasive functions:

They define the structure of the argument in addition to inviting the reader to
draw conclusions that advance your client’s interests.

The organization of your point headings lends clarity to the arguments:

Point headings supply the structure for the brief’s Argument section.

However, point headings also appear in the Table of Contents at beginning of the
brief and are often the reader’s introduction to your arguments.

LEGAL REASONING AND METHODLOGY 14

 Therefore, when read together, your point headings should offer the reader a
complete and persuasive overview of your arguments. This section focuses on
effectively organizing your point headings.

Point headings provide persuasive conclusions on legal issues:

Point headings provide your reader with concise and persuasive summaries of
your arguments.

Because you are writing to convince the court to rule in a particular manner,
point headings should not merely be topical or abstract discussions of the law.

Rather, point headings should identify the applicable rule, convey your
conclusion on the issue, and relate legally significant facts and reasoning.

How to evaluate your heading and sub-heading for

effectiveness?
Headings and sub-headings should be forceful and argumentative.

The sub-headings should be neither too many or too few.

When collected in the Table of contents, the headings and sub-headings should
lay out a complete and persuasive outline or your theory. Each point should be
independent, complete and free-standing ground for a ruling in your favor.

Headings and sub-heading should not assume information that judge would lack
when reading the table of content. Each heading and sub-heading should be
single sentence that can be immediately understood.

Each point heading should identify the ruling you want.

The controlling rules should be identified in the headings or sub headings. The
one, two or three most determinative facts should at least be alluded to in either
headings or sub headings.

LEGAL REASONING AND METHODLOGY 15