Trial lawyers are professional arguers. Clients employ us to argue on their behalf -- to be their advocates. Notwithstanding this paramount role of argument in our work, few of us have given much attention to argument as the subject of study.
In learning to think like a lawyer during law school, most of us develop a sense for recognizing a strong legal argument, the kind a judge is likely to find compelling. There is, however, much more to the process of crafting a winning argument than possession of the analytical tools learned in law school.
Your argument as a lawyer is purposeful speech. Its purpose is to persuade a decision-maker to decide in your client’s favor. Your argument as a lawyer should not be confused with the logician’s concept of argument. The logician’s concern is not with persuasion, but with arriving at a valid conclusion from a series of premises.
As a professional arguer, you are retained not merely to influence beliefs but to induce the action of a favorable decision by a judge or jury. This desired action is the goal that should guide the preparation and presentation of your argument. A possibly apocryphal story is that when people heard the Greek orator Demosthenes, they often remarked, “My, what a pretty speech.” When they heard Cicero, they shouted, “Let us march!” Your goal, then, is to make the argument that not merely impresses but, like Cicero’s, induces the desired action.
Before preparing an argument, whatever the context, you should first determine precisely what it is you hope to achieve. As Casey Stengel warned, “If you don’t know where you’re going, you might end up someplace else.” Sometimes your goal will be obvious, such as winning a defense verdict for your client. Often, though, your goal may not be this clear. Think about your goal carefully. Then, describe it in one clear sentence so you know exactly where you are heading.
Circumstances sometimes dictate that your sights be set on a lesser target than the total victory your client may demand. In defending a civil case in which a defense verdict appears impossible, for example, your goal might be to limit damages. In some cases, you may identify multiple goals; in a summary judgment argument, for example, you may seek to win the motion but, if that fails, your goal becomes to persuade the judge and opposing counsel that the case has less settlement value than they think. Winning the motion may be the primary goal and the secondary goal to posture the case for a favorable settlement.
There may be intermediate goals that, if achieved, will facilitate retaliation of the ultimate goal. To understand the intermediate goals of an argument, consider the concept of claim. As Stephen E. Toulmin, in his 1983 book, The Uses of Argument, explains: claim, in this context, refers to a proposition that you, as an advocate, seek to have accepted by your listener.
In a routine personal injury case, much of your argument for the plaintiff would be concerned with the reasons, supported by the law and evidence, that the plaintiff’s claim of negligence should be accepted. The jury’s acceptance of this claim is an intermediate goal of your argument. The ultimate goal of your argument, of course, is the award of a substantial plaintiff’s verdict. In your typical argument, there may be several claims that provide the logistical building blocks that lead your listener to the desired outcome.
In the example of the personal injury case, these claims might be that the defendant was negligent by driving drunk, the defendant’s negligence caused the plaintiff’s back injury, and the back injury prevented the plaintiff from returning to work for two years. The jury’s acceptance of each of these claims is the intermediate goal of your argument.
Other goals include Clarence Darrow’s belief that “the main work of a trial attorney is to make a jury like his client,” or inducing the jurors to identify with you – to believe you are similar to them and, therefore, a person they can trust. If the jury identifies with you and likes your client, the probability of a favorable verdict is materially enhanced.
When preparing an argument, keep your ultimate goal clearly in mind. As you think through your case, continually test any point you might make by asking, “How will this help to achieve my goal?” In golf, every stroke you take should advance your ball toward the hole. In argument, every point you make should also advance your goal.