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COM 326: Thinking Like a Lawyer(latest)
Transcript of COM 326: Thinking Like a Lawyer(latest)
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.
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.
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
(think like a lawyer)
(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.
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
Timing is everything!
Occasion: both historic and immediate
Audience: psychology, cultural history
Speaker: training, knowledge of topic, physical traits
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
Premises based on observation and
Interpretations of events
Tell you “what happened.”
Nothing is a "fact" until there is agreement!
Premises based on some criteria
Tell you “what to call it.”
Questions of Law
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
Used more often than you'd think!
The answer is already agreed upon.
One side concedes.
Don't waste time on these.
Joshua Bell experiment