Friday, December 9, 2011

The Lawyer's Art of Argument

People believe lawyers like to argue. Well it kinda comes with the territory so to speak. We are trained in law school to look for "Issues." Issue Spotting 101.

What is an issue? An issue is where there are two or more sides, two or more points of view, and/or two or more facts in dispute. Ah the magic word dispute. 

That's what we do, we dispute (hey it's a verb and a noun). At the heart of any lawsuit or dispute lies the triad of available arguments. 

The Lawyer's Toolbox Contains:

1. LEGAL Arguments: Under this law, this statute, and/or this legal principle my client should win money, custody, the property or be found not guilty because the law is in his/her favor. This is generally based upon prior situations (history). Although lawyers like to use the fancy legal term, precedent. 

Before today it was decided thus so in this case the same result should stand. Courts like this, and have a special name for it, "stare decisis," It basically means let the decision stand, don't rock the boat, follow prior times and prior judges and prior courts. 

The full latin: “Stare decisis et non quieta movere” 
"to stand by decisions and not disturb the undisturbed."

So I first (as a lawyer) consider any Legal Arguments. What if I have NO legal arguments, then I try...

2. FACT Arguments: The facts may be different than what the witnesses say or the evidence is demonstrating. Different People can and will interpret or view the same event with different eyes. Was it a Red light or green light? Was he tired or was he intoxicated? Was the light broken? Was the tire defective or were the brake pads worn? 

Maybe the fact witnesses are lying or biased or mistakenThey may even be all three. 
Are all the facts consistent? Do things make sense? Do things add up? 


The results of any: blood test, breath test, DNA test, field sobriety tests are all disputable.

EXPERT WITNESSES are disputable.

The accident reconstructionist, the engineer, the mechanic, the doctor, the police, the trooper, the deputy were mistaken? Their opinion is always that, an opinion.

So secondly I consider any factual arguments.

3. I just plain argue. After the legal arguments, after the factual arguments, I only have my ability to argue. & I can argue about just about anything. 

At this point (stage) I may turn to the "equity" arguments (basically fairness), and point out a client’s age (young or old), sex (male or female), pregnancy, drug addiction, mental problems, necessity (not a true legal necessity in all probability), upbringing, family problems, childhood, bad luck, stupidity,,, when you have nothing left sometimes the craziest of arguments may ring a bell with someone. After 25 years of dealing with people in a professional capacity (and what makes them tick) not much surprises me. Anyway, You don't win if you don't try. 

Lawrence Newman, D.C., J.D.

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