ADR Report

General Principles of Argumentation

1. Be sure that the tribunal has jurisdiction
2. Know our audience
!. Know our case
". Know our ad#ersar$s case
%. Pa careful attention to the applicable standard of decision
&. 'e#er o#erstate our case. Be scrupulousl accurate
(. )f possible* lead with our strongest argument
+. )f ou$re the ,rst to argue* ma-e our positi#e case and then preempti#el
refute in the middle . not at the beginning or end
/. )f ou$re arguing after our opponent* design the order of positi#e case and
refutation to be most e0ecti#e according to the nature of our opponent$s
argument
11.2ccup the most defensible terrain
11.3ield indefensible terrain . ostentatiousl
12.4a-e pains to select our best arguments. 5oncentrate our ,re
1!.5ommunicate clearl and concisel
1".Alwas start with a statement of the main issue before full stating the facts
1%.Appeal not just to rules but to justice and common sense
1&.6hen ou must rel on fairness to modif the strict application of the law*
identif some jurisprudential ma7im that supports ou
1(.8nderstand that reason is paramount with judges and that o#ert appeal to
their emotions is resented
1+.Assume a posture of respectful intellectual e9ualit with the bench
1/.Restrain our emotions and don$t accuse
21.5ontrol the semantic plaing ,eld
21.5lose powerfull . and sa e7plicitl what ou thin- the court should do
:egal Reasoning
)n General
1. 4hin- sllogisticall
;tatutes* Regulations* 2rdinances* 5ontracts* and the :i-e
1. Know the rules of te7tual interpretation
2. )n cases controlled b go#erning legal te7ts* alwas begin with the words of
the te7t to establish the major premise
!. Be prepared to defend our interpretation b resort to legislati#e histor
5aselaw
1. <aster the relati#e weight of precedents
2. 4r to ,nd an e7plicit statement of our major premise in go#erning or
persuasi#e cases