Build legal arguments around propositions, not cases.
Legal arguments consist of conclusions backed by reasons. They should be structured accordingly.
Law students have long been taught using Christopher Langdell’s case method, which involves teaching legal rules and reasoning indirectly by having students read and discuss judicial opinions.
Perhaps as a side effect of this approach, many attorneys develop the habit of structuring arguments around discussions of cases. For example, they may start paragraph after paragraph in their argument section with a case-centric topic sentence (e.g., “In Smith v. Jones, the court held ….”), often without first explaining why the case matters or how it fits into an argument.
That’s a mistake. As I’ve argued while criticizing frameworks like IRAC and CREAC, arguments consist of conclusions backed by reasons. Legal briefs’ argument sections should be structured accordingly, by stating a legal conclusion followed by the reasons the conclusion is correct.
Cases and other authorities are not themselves reasons to accept a conclusion. Rather, they support an argument’s legal premises. Strong legal arguments combine propositions of law and fact to generate reasons.1 Put differently, a legal reason usually consists of a rule combined with a fact shown to fall within the rule.
Attorneys cite cases to defend their legal propositions (rule statements) and show that the facts at issue are governed by those rules. I discuss how to persuasively choose, cite, and quote cases and other legal authorities in chapter 8 of Elegant Legal Writing.
Conclusions + reasons: A visual example
Here’s an example. In securities fraud cases, plaintiffs and prosecutors must prove scienter, a nebulous concept meaning that the defendant knew of the fraud and intended to deceive investors.2 A securities-fraud defendant might argue that because they invested in the same securities as the plaintiff, they had no incentive to lie or knowledge of any fraud.
The argument map below, created with the free software Argdown, shows how propositions of law and fact can be weaved together to form a reason for the defendant’s preferred legal conclusion (that the plaintiff cannot prove scienter). The argument consists of six propositions adding up to one legal conclusion, shown in the uppermost box of the image. The conclusion is supported by two premises, one a proposition of fact and one of law. These premises are themselves conclusions inferred from more elementary propositions of law and fact.
If the court accepts the defendant’s argument, the security fraud claim will fail because scienter is a required element. These are high stakes, making it essential for the attorney to communicate the argument clearly. This requires stating the premises, demonstrating their truth, and showing how they interact to lead to the conclusion.
Many attorneys fail to trace an argument’s logic in this way because they build their argument around a favorable case. For example, the attorney arguing the scienter point above might start the discussion with a paragraph like this:
In the Ninth Circuit case Worlds of Wonder Securities Litigation, a class of investors sued Worlds of Wonder, Inc. (“WOW”) for securities fraud in a case involving so-called “junk bonds.” See In re Worlds of Wonder Sec. Litig., 35 F.3d 1407, 1411 (9th Cir. 1994) (N.D. Cal. 1993). The investors argued that one of the company’s prospectuses was misleading. See id. at 1416.
Case-centric paragraphs like these may lead the judge to misunderstand your argument or fail to see its point. You may lose the judge’s interest and then the case.
Instead, start by stating your conclusion, then systematically provide the premises and inferences leading to the conclusion. Worlds of Wonder is indeed a great case for this defendant — so good that it might even warrant discussion in the brief’s body text rather than its footnotes. But its sole purpose is to support one of the propositions that interact to produce the desired conclusion (that the plaintiff can’t prove scienter).
Make your argument’s structure transparent and easy to visualize. It may help to think about argument maps like the one shown above; suppose the judge told their clerk to map your brief’s arguments, which requires identifying each argument’s premises and showing how these interact to produce a conclusion. Your argument section should make that task easy.
Ryan McCarl is a founding partner of Rushing McCarl LLP and author of Elegant Legal Writing (Univ. Cal. Press 2024), which is available on Amazon and Audible. For more writing tips, subscribe to the Elegant Legal Writing newsletter and follow Ryan on LinkedIn. McCarl’s book is now available for preorder.
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Photo credit: Jaz King on Unsplash.
A proposition is a declarative statement that can be true or false. In law and other domains, arguments consist of one or more premises, one or more conclusions, and the reasoning used to connect the premises to the conclusions. Premises and conclusions are always propositions.
Black’s Law Dictionary defines the relevant sense of scienter as a “mental state consisting in an intent to deceive, manipulate, or defraud.” Bryan A. Garner (ed.), Black’s Law Dict. 1613 (11th ed.).
Ryan,
I build my legal arguments around three prepositions.
"My reasoning is superior to the lower court's"
"My opponent's argument is beneath contempt"
"Ruling in my favor will advance the cause of justice"
Jon
PS
I hope you are doing well and your sales are through the roof.