Persuasive Legal Analysis - Important for Legal Writing

Jenny Mollen quoted: -

'I think the power of persuasion would be the greatest superpower of all time.'

Writing well is an influential tool in the practice of law. Like the oral advocacy, the motive of written advocacy is to convince and in order to be persuasive and convincing, the document must be helpful to the intended reader. The written argument thus provides a golden opportunity to persuade the Court before the oral address coming into play. To understand this art of persuasive legal analysis we have to focus on its words: -

Persuasion - The Greek philosopher Aristotle listed four reasons why one should learn the art of persuasion:

  1. Truth and justice are perfect; thus, if a case is lost, it is the liability of the speaker
  2. it is an excellent tool for teaching
  3. a good rhetorician requires to realize how to argue from both the sides to figure out the whole problem and all the options available, and
  4. there is no better way to defend one's self.

Legal Analysis - The term 'legal analysis' is one that can be applied broadly across the entire legal spectrum, but its basis is found in the specific understanding and implementation and use of law is based almost completely on interpretation. Laws vary across the gamut of criminal, civil, corporate, or political law, and vary within its many of the categories in complexity. 

Predictive analysis is not based on a legal matter with which it plays a direct part, but are based on presenting hypothetical interpretations. When the affair of legal analysis is based especially on an existing issue that requires the arguing of a legal point, this is called persuasive analysis. Writing an argument helps writer to perceive his or her case to define, refine and interpret the cases that court must decide and also helps in expressing facts and combining them into legal arguments.

Motion

A motion is a written plea or proposal to the court to attain an asked-for order, direction or command. There are various motions which depends upon the nature of the cases. Motions may be used in various ways to provide assistance to the cases: -

  • To acquire information.
  • To dismiss cases.
  • To trim Cases down.

These can be simple, such as a basic request to extend a deadline or can be highly technical. Motions can be useful tools for furthering case and should be considered at every stage of litigation. Every motion and brief should be used as a chance to educate the judge on the facts and the law. Not using briefs as part of one's strategy is a wasted opportunity. Judges are human. Their attention span is not any longer than ours. When they start reading a brief, they read as little or as much as they want, and one of the determinants of how much they read is how well written the brief is. If the brief is confusing and disjointed or filled with typos and difficult to understand, the judge may not read it from start to finish. On the other hand, if the brief is well written, tells a story, and keeps the judge interested, he or she is much more likely to read the entire brief. So here are certain keys for drafting a successful motion:-

  1. Write clean, simple, and grammatically sound sentences and argument's persuasiveness will skyrocket.
  2. Use several short sentences. They are clear, concise and exact. And occasionally use conjunctions to begin sentences to preserve stylistic flow.
  3. Every motion, writ, or brief should end with a statement specifically articulating what the court should do.
  4. Either follow IRAC or CREAC while writing a legal document.

IRAC structure -

I = identify the issue.
R = state the rule.
A = apply the rule to the facts.
C = state your conclusion

or

CREAC -

C = state your conclusion.  
R = state the rule.
E = explain the rule and case law.
A = analyze the facts according to the law.
C = restate the conclusion.

  1. Limit yourself to the strongest arguments. A leading Australian QC says the 'essence of winning in court is to pick the real point of the case and not flog the ones which have no legs'.
  2. Put strongest arguments first. Some researchers have found a 'primacy effect'. Arguments that appear at the beginning of a message persuade more than arguments that appear later.
  3. Argument should take up the vast majority of the brief, but obvious responses should be identified and addressed. Anticipate and address counter-arguments.
  4. Never misstate the record and never misquote a source. When quoting from cases explain the relevance of the quote.
  5. Know the Parties- Identify the parties at the beginning of the motion.
  6. Know Your Judge- It is very important to know judge's preferences. Some judges stick to traditional procedural formalities whereas some judges entertain motions that are persuasive and help in better understanding the key issues involved in the motion to compel.

Good writing imposes a rigour in analysis by exposing the strengths and weaknesses of an argument and forcing an evaluation and re-evaluation of the content. The document should provide an easy road map for the reader to follow so that the reader from the outset is able to follow the significance of what he or she is reading. Writing persuasively in a legal setting is one of the most important skills an advocate can learn. Whether you are an attorney or you are representing yourself, your ability to convey your arguments in a convincing way is often the difference between winning and losing a case. 

 

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