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COM 326: Thinking Like a Lawyer(latest)

COM 326
by

Cheree Carlson

on 1 February 2017

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Transcript of COM 326: Thinking Like a Lawyer(latest)

Thinking Like a Lawyer
Traditional Argument

So much context, so little space!
Thank goodness for Bitzer's handy scheme!
Each exigence “invites” a fitting response.
Identify central issue
Identify the "rhetorical audience"
Identify obstacles or opportunities
For any case, a handle on these elements is enough context.
Orienteering 101:
Reconstruct The Context
First: figure out where you want to go.
Thinking like a lawyer assumes people are rational.
Or that lawyers and judges are, at least.
Focus on logic and argument.
ARISTOTLE (384-322 BCE)
He's still mostly right about persuasion.
Yeah, an old dead guy.
Inartistic versus Artistic Proof
inartistic already exists (eyewitnesses, physical evidence)
artistic must be invented by the speaker’s art.
Artistic Proofs arise from “topics”
Topics help one construct specific arguments
Tell you what to argue about.
Help you decide when you have said enough.
Aristotle on how to prove your case.
Artistic Proofs Make the Case!
The Law – what is actually written in the books.
Precedents – prior decisions made about how to interpret the law.
These are interrelated – enough new precedent can lead to changing the law.
A Case's Topics are Determined by
Once you know the pertinent topics, you construct arguments.
An argument is simply a statement of a relationship between two terms.
E.G. Smoking is harmful to your health.
E.G. The moon is made of cheese.
Arguments are not inherently logical.
Quality of support determines quality of an argument
What is an argument?
Aristotle's Decision Tree
Making your best arguments.
Knowing standard arguments lets you anticipate other side.
Topics help you find where your “leverage” is.
Knowing both sides helps you overcome limitations in your own thinking.
Why Pay Attention to Topics?
Modern Topic Systems
Issues and Answers
One use of the system is to determine what the specific issues are, so you can focus on them and don’t waste time.
Again, we got a scheme to narrow the field.
inherent (arise naturally)
questions (not answers)
vital to a cause (answer to question determines decision)
Ask the right questions
build arguments support your desired answer
There's your plan!
Of course, the other side is doing the same thing. . .
The Stasis System
Stasis of fact deals with evidence
“What do we know?”
Stasis of definition deals with label
“What shall we call it?”
Stasis of quality
“Are there mitigating circumstances?”
Stasis of jurisdiction
“Who has the right to judge?”
FACT: Was Mrs. Johnson killed?
DEFINITION: Was it first degree murder?
QUALITY:Was it justifiable homicide?
JURISDICTION: Who has the right to judge?
So we find a body
In this class we deal with
two broad critical directions
Traditional
(think like a lawyer)
Dramatistic
(think like a jury)
Two? Which way do I go?
You probably need a bit more help than that. . .
Then examine a map to see whether the case will take you there.
The Rhetorical
Situation
Audience
Constraints
Exigence
Shorthands history into specific aspect relate to communication.
What is the problem?
Implies some urgency.
Must be something talking can help change.
Who has to be persuaded?
"Rhetorical Audience" implies people with the power to do something about the problem.
There may still be multiple other audiences.
Both Obstacles and Opportunities
Formal Rules
Societal Expectations
Resources
Timing is everything!
Example: Vossburg v. Putney
Topics based on the Law
“No liability without fault.”
“One who is at fault should be liable.”
“Between two innocents, let the party who caused the damage pay.”
Fault
Cause
“No liability without causation.”
“Doctrine of Reasonable Care”
Possible plaintiff arguments:
“The defendant kicked my client during class. It was a wrongful act.”
“Even if the boy meant no harm, he caused the damage. Someone has to pay the medical bills, it should be the one who caused the damage.”
Possible respondant arguments:
“It was a freak accident.”
“The boys were playing. My client meant no harm.”
“The real cause of the damages was the pre-existing condition.”
“The damages requested are way out of line for the offense.”
Judges' Decision

Since the kick occurred after class was called to order, it was an unlawful act. The kid's folks were liable.
BUT, they were displeased by the way in which the medical expert testimony about the cause of the lameness.
So it was overturned, retried and Vossburg still won.
"You take your victim as you find him."
If someone has a hidden medical condition,and you aggravate it, you are liable even if the damages were not reasonably foreseeable and you did not intend to cause such a severe injury.
Eggshell Skull
Occasion: both historic and immediate
Audience: psychology, cultural history
Speaker: training, knowledge of topic, physical traits
Goals/expectations

This information does not all get into the final analysis!
Learning the Whole Story:
Texts in Context
Different Issues Generate Different Clams
Questions of Fact
Conjectures
Premises based on observation and
Interpretations of events
Tell you “what happened.”
Causation
Establishing relationships
Nothing is a "fact" until there is agreement!
Definitions
Premises based on some criteria
Tell you “what to call it.”
Questions of Law
Most Common
Conceptual definitions (what's written in law)
Procedural definitions (ex: rules of evidence)
Stipulative definitions (specialized/agreed upon)
Premises based on quality
Examine consequences of actions
Completely interpretive
Used more often than you'd think!
Admitted issues:
The answer is already agreed upon.
One side concedes.
Don't waste time on these.
Issues are
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