Legal Reasoning & Problem Solving


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Legal Reasoning & Problem Solving

  1. 1. Legal Reasoning and Problem Solving
  2. 2. 1: Legal Writing <ul><li>Effective legal writing techniques can be learned </li></ul><ul><li>Most teachers and educational institutions don’t feel it’s their job to teach good writing </li></ul><ul><li>The key to good marks in exams is knowing how to structure an argument and how to present information in an effective manner. </li></ul><ul><li>When answering problem questions, you must analyse the question and write strong, effective, well-structured essays in response. </li></ul>
  3. 3. The CLEO Method <ul><li>Four-step method of legal analysis and writing: </li></ul><ul><li>C : Identify the Claim at issue; </li></ul><ul><li>L : Present the applicable Law ; </li></ul><ul><li>E : Evaluate the facts of the problem; </li></ul><ul><li>O : Identify the Outcome of your argument </li></ul>
  4. 4. Elements of a First-Class Legal Essay <ul><li>Close attention to the question as it is asked; </li></ul><ul><li>Detailed knowledge of the topic addressed, as well as a deeper understanding of the context in which the topic exists; </li></ul><ul><li>Superlative coverage of the question, including both breadth and accuracy, with no or almost no significant errors or ommissions relating to the law at issue; </li></ul><ul><li>Identification of at least some of the less obvious points of law; </li></ul>
  5. 5. A First-Class Legal Essay /2 <ul><li>Outstanding clarity of structure, argument and writing style; </li></ul><ul><li>Excellent use of supporting information and ideas; </li></ul><ul><li>Use of more than one possible line of argument; </li></ul><ul><li>Presentation of theoretical arguments concerning the subject, significant critical analysis and thoughtful personal perspective on the debate. </li></ul><ul><li>BUT: the best organization and writing style cannot overcome a lack of knowledge! </li></ul>
  6. 6. Step One: The Claim <ul><li>Identify the Claim at issue: decide what points you need to make to answer the question </li></ul><ul><li>Spot legal controversies, construct multiple lines of argument and respond to questions as they are asked </li></ul><ul><li>Write a two to three sentence opening paragraph, where you set forth the claim quickly and succinctly </li></ul>
  7. 7. Step Two: The Law <ul><li>Present the applicable law by identifying the applicable legal authority </li></ul><ul><li>Demonstrate the depth and breadth of your legal knowledge as well as the quality of your legal reasoning skills </li></ul><ul><li>Include legal support for all your major points </li></ul><ul><li>Try to find the best case and use it: </li></ul><ul><ul><li>the leading case; </li></ul></ul><ul><ul><li>The most specific case; </li></ul></ul><ul><ul><li>The most factually similar case. </li></ul></ul>
  8. 8. Step Two: The Law /2 <ul><li>Begin with the general rule associated with the claim; </li></ul><ul><li>Move to the general rule associated with the subissues; </li></ul><ul><li>Set up your specific exceptions to the rule and any cases you need to distinguish; </li></ul><ul><li>Relate more specific cases to the general standard. </li></ul>
  9. 9. Step Three: The Facts <ul><li>Evaluate the facts of the problem in light of the legal authority presented in the second step; </li></ul><ul><li>Illustrate your powers of analysis and persuasion as you discuss the extent to which the facts in your particular question live up to the general legal standard identified in your discussion of the law </li></ul><ul><li>Demonstrate some originality in your thinking and writing style; </li></ul>
  10. 10. Step Three: The Facts / 2 <ul><li>Apply the law to the facts of your case: explain the importance of each of the legal authorities to your specific fact pattern; </li></ul><ul><li>In Step Two (L) you provided an objective analysis of the standards that apply to all persons and all situations; </li></ul><ul><li>Now you provide a factual analysis of your problem; </li></ul><ul><li>Discuss the issues that are primarily in dispute. </li></ul>
  11. 11. Step Three: The Facts / 3 <ul><li>Track your legal analysis and demonstrate how the facts apply to each of those standards; </li></ul><ul><li>Start at the beginning of your law section; </li></ul><ul><li>Analyse how your facts demonstrate the non-contentious issues; </li></ul><ul><li>Focus on the contentious issues; </li></ul><ul><li>Briefly mention in passing minor issues. </li></ul>
  12. 12. Step Four: The Outcome <ul><li>Identify the Outcome of your argument; </li></ul><ul><li>An essay that fails to provide a conclusion about the arguments made by the parties is incomplete; </li></ul><ul><li>Indicate how you believe the question would be decided by a court – how a court would resolve the issue; </li></ul><ul><li>Tie up loose ends and come up to a final determination about which part of the existing argument controls the disposition of the case; </li></ul><ul><li>Conclude with a single sentence stating the resolution of the dispute: indicate who will win! </li></ul><ul><ul><li>Ex:”On these facts, the claimant will prevail and will receive damages in X amount”. </li></ul></ul>
  13. 13. Step Four: The Outcome /2 <ul><li>Contextualize your discussion into a larger debate in that field; </li></ul><ul><li>Remember: the important part of writing an answer to a problem question is to answer the problem ! </li></ul><ul><li>The CLEO method will help you write first-class, powerful essays, where you present clearly identified legal authority through sophisticated and well-organized legal arguments. </li></ul>
  14. 14. 2: Legal Reasoning <ul><li>Construction of legal arguments: you must develop argumentative strategies to apply the law and facts to simulated legal problems; </li></ul><ul><li>A legal argument is a dispassionate appeal to reason constructed from the evidence and applicable legal rules as applied to a set of facts. </li></ul><ul><li>Argument is a core skill for the study and practice of law; </li></ul>
  15. 15. Learning Outcomes <ul><li>You should: </li></ul><ul><li>be able to define an argument and distinguish between general argument and legal argument; </li></ul><ul><li>understand the relationship between the diagnosis of a problem and the construction of rules to solve problems; </li></ul><ul><li>understand the difference and connections between fact analysis and legal analysis; </li></ul>
  16. 16. Learning Outcomes / 2 <ul><li>You should: </li></ul><ul><li>be able to define and differentiate between inductive, deductive and abductive reasoning; </li></ul><ul><li>develop critical thinking; </li></ul><ul><li>understand the way in which an argument relies on factual analysis, legal reasoning, persuasion and critical thinking . </li></ul><ul><ul><li>Exercising careful judgements based upon careful observation, careful investigation, careful consideration (always searching for hidden assumptions). </li></ul></ul>
  17. 17. The Argument <ul><li>An argument is a series of statements, some backed by evidence, some not, that are purposely presented in order to prove, or disprove, a given position. </li></ul><ul><li>To engage in the process of argumentation is to deploy methodically a series of arguments. </li></ul><ul><li>An argument is a journey from problem to solution through the medium of the interpretation and application of legal rules to legal problems. </li></ul><ul><li>Solving problems with rules requires imagination! </li></ul>
  18. 18. The Legal Rule <ul><li>A legal rule is an oral or written statement guiding the conduct of individuals and / or groups infringement of which may or may not result in compulsory or discretionary action being taken to enforce the observance of the rule. </li></ul><ul><li>A rule often represents the view of a group concerning lawful, moral, social, acceptable, good action. </li></ul><ul><li>A rule often contains statements about values – it can communicate statements about justice, ethics, equality and fairness. </li></ul><ul><li>Its infringement can lead to severe penalties. </li></ul>
  19. 19. Logic <ul><li>Logic is the science of reasoning, thinking, proof or inference. </li></ul><ul><li>For a lawyer, logic is the study of propositions and how conclusions may be correctly obtained from propositions in the process of reasoned argument. </li></ul><ul><li>There are two main types of logic: deductive and inductive –and a third process: abduction. </li></ul>
  20. 20. Deduction <ul><li>In deductive reasoning, the argument has to follow a prescribed form: </li></ul><ul><ul><li>A major premise: states a generality </li></ul></ul><ul><ul><li>A minor premise: states a particularity </li></ul></ul><ul><ul><li>Conclusion </li></ul></ul><ul><li>This form of argument is called a syllogism : the subject in the major premise becomes the predicate in the minor premise and the conclusion is necessary, or compelled. </li></ul><ul><li>The major way of attacking a deductive argument is through the premises. The conclusion is logically compelled and cannot be attacked. The major and minor premises, however, may be attacked for argument. </li></ul>
  21. 21. Induction <ul><li>In Inductive reasoning, the conclusion, although also based on premises, extends beyond the facts in the premise. </li></ul><ul><li>The premise supports the conclusion, it makes it probable – but it is possible that another conclusion exists. </li></ul><ul><li>The premises only tend to support the conclusion – they do not compel it. </li></ul>
  22. 22. Induction / Deduction <ul><li>Deductive reasoning is a closed system of reasoning, from the general to the general or the particular, including cases where the conclusion is drawn out; it is, therefore, analytical. </li></ul><ul><li>Inductive reasoning is an open system of reasoning, involving finding a general rule from particular cases and is inconclusive – which suggests the end processes of legal judgements are inconclusive. The courts ensure that inconclusive reasoning can be enforced. </li></ul>
  23. 23. Logic and Truth <ul><li>Like deductive reasoning, the logic of inductive reasoning has no interest in the actual truth of the propositions that are the premises or the conclusion. </li></ul><ul><li>Just because a logical form is correctly constructed, it does not mean that the conclusion expressed is true. The truth of a conclusion depends upon whether the major an minor premises express statements that are true. </li></ul>
  24. 24. Argument by Analogy <ul><li>Analogy is the most common form of argument in law. </li></ul><ul><li>It begins by stating that two objects are observed to be similar by a number of attributes. </li></ul><ul><li>It concludes that the two objects are similar with respect to a third attribute. </li></ul><ul><li>The strength of such an argument depends upon the degree of relationship. </li></ul>
  25. 25. Reasoning by Analogy <ul><li>Judges are involved in a type of inductive reasoning called reasoning by analogy. This is a process of reasoning by comparing examples. The purpose is to reach a conclusion in a novel situation. </li></ul><ul><li>This process has a three-stage process: </li></ul><ul><ul><li>the similarity between cases is observed; </li></ul></ul><ul><ul><li>the rule of law (ratio decidendi) inherent in the first case is stated (reasoning is from the particular to the general: deduction); </li></ul></ul><ul><ul><li>that rule is applied to the case for decision (reasoning is from the general to the particular: induction). </li></ul></ul>
  26. 26. Relationship between deductive and inductive arguments <ul><li>At the level of factual analysis, in relation to law, deductive argument requires extension by tracking through the process of inductive reasoning, starting with the minor premise of the deductive argument. </li></ul><ul><li>Inductive reasoning involves putting forward a conclusion that seems strong, based on inferences that provide evidence in favour of one party. </li></ul><ul><li>The final argument will consist of propositions or assertions that will invariably be backed by evidence. For some law problems, a cluster of arguments may need to be set up dealing with separate issues. </li></ul>
  27. 27. Abductive Reasoning <ul><li>Lawyers inevitably look at possible inductive reasoning that counters their own argument, otherwise they could be caught by surprise. This involves constructing opposing hypothetical theses. </li></ul><ul><li>The evidence a lawyer has may suggest alternatives, and perhaps even more plausible alternatives. This creative process which tends to argue around the data based on hypothetical matters, rather than on matters known, is called abductive reasoning . </li></ul><ul><li>It is always a good idea to try and predict counter-arguments to your own. Then you can consider how you would deal with them. </li></ul>
  28. 28. Conclusion <ul><li>The essential quality of a well-structured argument is that it takes the reader / listener from the beginning to the end and makes them hold the opinion that the argument is correct or the most plausible argument. </li></ul><ul><li>Sometimes, the process of argument uses bridges from one fact to another that are not made of evidence but inference. </li></ul>
  29. 29. Conclusion / 2 <ul><li>At the everyday level of explanation, a legal argument tends to say: </li></ul><ul><ul><li>This happened; </li></ul></ul><ul><ul><li>The following law states that this behaviour is illegal in certain circumstances; </li></ul></ul><ul><ul><li>These witnesses, these official documents, this forensic evidence prove that it happened; </li></ul></ul><ul><ul><li>It can be proved therefore that X did this; </li></ul></ul><ul><ul><li>X, therefore, broke the law. </li></ul></ul>
  30. 30. Conclusion / 3 <ul><li>An essay may argue about theory, rather than fact, but the structures remain the same. </li></ul><ul><li>Argument construction is not difficult if there has been meticulous preparation of information. </li></ul><ul><li>The argument will be basic or elegant depending upon the development of skills, understanding of the law, the level of preparation, thought and reflection that has gone into the argument construction. </li></ul><ul><li>What one gets back is proportional to the quality of what has gone in. </li></ul>