How Lawyers

Argue a Court
Case: “The
Phrases of
The Complete
Lawyer”

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 How Lawyers Argue a Court Case: “The Phrases
of The Complete Lawyer”
One of the most important weapons in a lawyer’s arsenal is “argument”. The
word “argument” engenders visions of debate, the heat and fury of positions
attacked and defended strongly, though with words.

That may happen of course, in today’s litigation, but generally the arguments
which win cases are not replete with drama, sound or fury. That is because
mature reflection goes into a judgment, not a momentary lapse of reason or a
sudden storm of emotions.

Peculiarly polite

We prefer to call them “submissions” before the Court since it is consistent with
our peculiarly polite way of putting things.

We start submitting before the Court saying “May it please your Lordship”
and then pause a moment, as if unless the Hon’ble Judge says “Thank You”
(as they ought to and as at least one Hon’ble Judge in my experience used to
say) we would simply stop talking, and punctuate every second sentence with
a “My Lord” and after the case is decided, if it goes in our client’s favour
“Much obliged to your Lordship” or “Grateful to your Lordship” and if it
goes against us, “As your Lordship please” or “So be it, My Lord”.

How these things were formulated has many answers, but the most commonly
accepted one is that these hark back to the courtly culture of a High Court of the
King, where unless the King was pleased to suffer you speak, you had to keep
quiet. What you say must please him. A bit like “Her Majesty’s Loyal
Opposition”.

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A method to madness: Our Learned Friend

We argue before the Hon’ble Court on the basis of facts we have pleaded in our
pleadings, and to elucidate the points of law. However, there is a method to our
madness.

We are not supposed to use such language as is un-parliamentary or would show

discourtesy to the Hon’ble Court or the opponent. That is why we always refer
to the counsel on the other side as “Our Learned Friend”.

Previously there used to be a distinction in the manner that we addressed learned

advocates on record and the learned counsel, but after 1961 and our Advocates
Act, there is no such differentia in address.

Even if you have known the opposing counsel as a family friend, even if he is old
enough to be your father, even if he knows nothing of the law, he is still your
“Learned Friend”.

How to say that the learned friend is wrong

When a learned advocate says that which is not true and he is supposed to know
that it is not, the usual formula is not to say “My Lord he is lying”. That would
be a worse solecism than the untruth itself.

The almost institutionalized formula we use is “My Learned Friend is not

properly instructed”, or if we want to be really censorious, “That submission by
my learned Friend is perhaps not borne out by the records”.

When the opposing counsel is submitting things that are not on record, nor
pleaded, we usually say “but that is beyond my learned friend’s client’s pleadings
and is not on records”.

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Fraud is never committed by my learned Friend, but only by my learned friend’s
client. My learned Friend can never interrupt, but he ought to allow me to finish.

Etiquettes in passion

Sometimes passions run high. Even during those times, court etiquette requires
that you never address your opposing counsel directly. You have to route it
through the Hon’ble Court.

An example would be when a persistently rude lawyer is always jumping up to

comment whenever you pause to breath. You don’t ask him to allow you to
finish. You keep on looking at the Hon’ble Judge and say things like “My learned
friend ought to allow me to finish” or “I am sure my Learned Friend will have his
turn”.

The trick is not to be provoked. A case is won by a cool head, and if you are
prone to losing your temper, then the opposing counsel will certainly exploit it by
sledging, in this context meaning to keep on making sotto voce comments that
you can hear, but may not reach the Court or may reach the Court and you but
can be passed off as a comment to the opposing counsel’s own juniors.

The moment you pause to reply to such off the cuff remarks, you lose the thread
of your thoughts and the skein of your submissions.

Reminding oneself, not the court

Sometimes, a case can spread over several days, with a lot of time in between. It
is not always possible for the Hon’ble Judge hearing the case to remember
everything. Yet the Hon’ble Court is presumed to have “total recall”. You
cannot be honest and start submissions by saying “To remind your Lordship: The
usual phrase is “Just to recapitulate for my own benefit”.

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Very often you will find that the Hon’ble Court does not understand a point of
law that you have been arguing for a long time.

You cannot show your irritation or say anything that would imply that it is the
Court that does not understand. You have to say “I am afraid/I am sorry
that/Perhaps I could not make myself clear. It is my fault. May I rephrase
myself.”

Much-talking Judge is like an ill-tuned cymbal

Even though quite a long time back Francis Bacon, then Lord Chancellor,
commented about garrulous Judges that a much-talking Judge is like an ill-tuned
cymbal, in real life they are the norm.

Many a Judge will not let you formulate a point of law, finish a thought or a
statement without asking a hundred questions. It is neither proper nor profitable
to brush the question aside.

If you are senior enough, you get away with “I will come back to that” or “My
Lord I will answer that directly” or” I will satisfy your Lordship” and then go on
with what you were saying; mostly though, you will have to answer the Court.

At those times, you must add a rider. “I must answer your Lordship’s query, but
your Lordship will grant me the indulgence to come back to my principal
submissions thereafter”.

Courtesy, detachment and finesse

The reasons why we use these euphemisms and courtly phrases, rather than how
they came into being are far simpler. Since we are required to submit to the Court
and seek an order from it, and since the causes we represent are not our own, we
must show courtesy, detachment and finesse.
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These small things impress the Hon’ble Court, avoid enmity and passion play,
and make our points with the greatest emphasis. We shall revisit these precepts
in the next part when we discuss the basic structure of an argument in law.

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 Tips on Oral Advocacy
Preparing for your argument? Here are some tips from faculty members and
members of the Moot Court Board

General tips

What is the best thing an oral advocate can do?

"Be confident. Even great advocates aren't perfect, and not every case is a
winner, but presenting your arguments with assurance and speaking in a clear,
forthright tone makes all the difference."

"Be prepared for all levels of knowledge in a judge. You never really know in
advance if you have a judge who glanced at the bench brief or a judge who's
spent a 30-year career practicing in exactly the area of law you're discussing.
Learn to read a judge's comfort level with the material, and adjust the detail and
complexity of your argument accordingly. Persuasion isn't always the art of
having the most details — it's about knowing your audience and tailoring your
message."
"Lead with your strongest point rather than building up to it. You should have
an outline of your argument and be ready to proceed if you are not interrupted
early on, but it's unlikely that you will get through many of your remarks as
prepared. Accordingly, be sure to amplify the most important aspect of the case
at the start and try to articulate the theme of your argument in the first sentence
or two."

"Be able to steer the conversation by smoothly transitioning between questions

and arguments. Doing so also creates a convincing yet conversational style that
puts judges at ease."

"Where possible, weave into your argument the idea that you are not only
correct on the law, but also seeking a just result. Although focused on the legal
analysis, the judges are attuned to fairness considerations and can be persuaded
by them in a close case."

"When asked a question, answer it directly. When possible start with a yes or
no, but if the short answer requires a qualification to protect your client’s
position, immediately follow the yes or no with that qualification."

What is the biggest mistake oral advocates make?

"Showing nerves." "Being too formal. Even at the highest levels of appellate
advocacy, an oral argument is closer to a conversation that an oration."

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"Starting to give an answer before thinking about what to say. Advocates often
rush into answering a question, fearing two seconds of silence, and then
flounder or reverse course as they reformat their answers on the fly. It's always
better to take a beat to be sure you know what you want to say before you start
speaking."

"The most serious error at oral argument is not listening carefully to the
questions and thus failing to address the concerns raised by the judges."

"Making a concession (one is almost never necessary, and you should be able to
defend your ground on all levels)."

Preparation for your Argument

What is the best way to prepare for oral arguments?

"Become comfortable with the record."

"Be able to articulate the standard of review applicable to the questions

presented, and understand the appellate court's latitude with respect to each
issue. Anticipate jurisdictional questions, and know the court's procedural
options for resolving the case."

"Think about the limiting principles that can prevent unintended consequences
of ruling in your favor. The judges will likely ask questions about the impact of
your requested relief on hypothetical future cases. Assuage concerns about the
proverbial slippery slope."

"Backstop your argument so that when it becomes apparent that a judge

disagrees with your position about one point, you can say that even if the court
doesn't accept that premise, you should still prevail, on some narrower ground."
"Try to put yourself in the place of the judges and think about but what
questions they would ask and work on short, clear and accurate answers to all of
them."

"Research, research, research. Then think about how to explain the case and
your arguments in a compelling way."
"Rehearse, rehearse, rehearse. Practice out loud. Get comfortable with the way
your argument sounds and with saying the names of the parties, cases, and
statutes. Get comfortable with the language of the case, with the particulars, and
it will be easy to talk about them fluidly without looking at your notes."

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What does a successful oral advocate's outline look like?
"Short! A few key words on different points and maybe a phrase you want to
repeat as theme of the case."

"No more than two pages, with annotated points in at least size 14 font. The
outline should only be there as a backup, and it should be very easy to find the
information you need."

"You won't be able to read your notes, so include only a few, useful "trigger"
words. Ideally, you should know your case so well the notes are superfluous."

How much of an argument should be memorized?

"Memorize your introduction so that you can make eye contact with the court.
Memorize the last paragraph so that your ending seems planned, rather than an
afterthought."

"Be aware of the questions you will likely be asked. Although you will not be
able to actually memorize answers to these questions, you should know in
advance how you plan to respond. Internalize the substance of those responses,
rather than memorizing the words, so that you can shape your arguments to fit
the actual questions the judges ask."

During the Argument

What is the most effective way to use the cases or other provided material?
"Cite to the names of cases only if (1) the legal rule is disputed and you are
trying to convince the court that your version of the rule is the right one or (2)
you are analogizing to a case to show the court why it should rule for you."
"Know the record very well and be prepared to answer every possible question
about the facts or the proceedings below. Except in response to questions,
though, oral argument is not the time to recite the facts of the case."

"Cases are most persuasive when they directly support your point or when they
are strong analogies to a point you are making."
"Remember that arguments are short and spending too much time on citations
will take away from the substance of your argument. It's great to look
knowledgeable, but it's bad to look showy."

"Make sure that you're aware of what they mean and stand for and their relative
chronological order."

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What should you do if you think your competitor has a misstated a fact?
"Always be respectful of your opponent. However, if he or she has misstated a
material fact, be sure to correct it and to do so in a way that shows how the
correct fact helps your argument."
"You may correct them graciously. Say something like: 'I believe my opponent
misspoke when discussing this point' or 'I would just like to clarify a point from
the record'."

What should you do if you make a mistake?

"Don't freak out. If it is an important point, take a deep breath, clarify your point
(walk it back if possible), and don't let the judges see you flustered."

"Don’t try to cover up the obvious with a lame explanation or excuse.

Forthrightly admit that you said something wrong. For example, when I said X I
was wrong, the correct response would have been Y."

How should you conclude?

"Short and powerful. No need for showy theatrics. In one sentence, tell the court
what you want it to do and why it should do it."

"Often, an effective ending is a “bookend” to your opening in which you pick

up on a phrase or theme you used in the opening."
"Ending shortly before your time expires leaves a great impression."

How do you make the most of a rebuttal?

"Don't respond to all of your opponent’s points. Just hit the biggest one or two
on which his argument rests. Leave the court with sense of wanting to rule for
your side and how they should do that."

"Rebut your opponent only on important points where (1) you were hurt and (2)
you have the ammunition to do something about it."
"Think big, but narrow. Don't go after a minute detail or slipup by the opposing
side, but don't try to overview the whole round either. Figure out what the one
key issue is that the judge(s) seem to care about the most, and give a clear,
straightforward reason why your side won that issue."

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What kind of feedback might a competitor want to seek from a judge?
"What can you do better? What worked well? What was convincing /
unconvincing in the argument?" "Was there an effective argument I failed to
make?"

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 Tips for Successful Oral Advocacy†

† This guide was originally compiled by Cleve Doty (JD ’09) in Fall 2008. It
appears here as amended by Prerak Shah (JD ’10) in Fall 2009 and Nick
Tarasen (JD ’12) in Fall 2011.

INTRODUCTION

This guide is meant to serve as a brief primer on how to be a successful oral

advocate. What follows is a series of general tips; some are specific to moot
court or oral advocacy, while others are simply tips for good public speaking.
Many of these tips are among the most common suggestions offered to
competitors. Hopefully this will help you prepare for this year’s competition.
This primer is by no means meant to serve as a complete guide. Great advocates
develop their own style, realizing which techniques and style of argument work
for them (and which do not). However, mastery of the suggestions below is
more likely than not to leave you better than you began.
Good luck!

RESOURCES

One of the more popular guides to appellate advocacy is Making Your Case:
The Art of Persuading Judges, written by Justice Antonin Scalia and Bryan
Garner (West 2008). The book provides a great deal of practical advice on both
written and oral advocacy. Other resources on reserve in the law library include:
 Mary Beth Beazley, A Practical Guide to Appellate Advocacy (Aspen
2010)
 Carole C. Berry, Effective Appellate Advocacy: Brief Writing and Oral
Argument (West 2009)
 Michael R. Fontham et al., Persuasive Written and Oral Advocacy in
Trial and Appellate Courts (Wolters Kluwer 2007)
 Alan D. Hornstein, Appellate Advocacy in a Nutshell (West 1998)
 Michael D. Murray and Christy Hallam DeSanctis, Appellate Advocacy
and Moot Court (West 2006)

Another great resource is hearing talented oral advocates in action—listening to

how they address judges, how they conclude an argument, how they handle
rapid-fire questions (and what type of questions they get), how they are able to
pivot from an accusatory question into a point in their favor, etc. You can listen

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to Supreme Court oral arguments at oyez.org, where you can also search by
advocate. Some of the finest oral advocates of the past generation include: pre-
bench John Roberts, Ted Olson, Seth Waxman, Carter Phillips, Paul Clement,
Maureen Mahoney, Paul Smith, and Walter Dellinger.

COURT COMPETITION
Tips for Successful Oral Advocacy

2 GENERAL TIPS

 Always address the judges as “your Honor” or “Justice/Judge _____.”

 Speak slowly. Take your time. There is no prize for saying the most
during an oral argument. Almost all competitors speak more quickly than
they think they are, and it is better to be slow and clear. And if you speak
quickly, it will be obvious to the judges when you are caught off guard.

 Do not come to a round with a fully prepared speech to read. Yes, you
should be able to speak for minutes on end if necessary—and sometimes
a judge will let you go on that long without any questions—but, more
importantly, come with an outline. Be prepared to mix, match, or reorder
your arguments in order to get your points across.

 Brainstorm a list of potential questions. Where are the hard issues? What
hard hypotheticals are there? Where are the key disagreements? What
practicalities could impact the weight of the arguments (that is, what real
or hypothetical facts, if slightly altered, could influence the outcome)?
What are the most likely counterarguments to your points? Then consider
answers to all of those questions. All well-prepared advocates will have
considered the key questions in advance. Most will outline answers to
these questions or rehearse their answers.

 One technique that some have found helpful is to create several brief
sheets to prepare. Make one with key statutory/case references. Make
another with the outline of your argument. Make a third with
counterarguments or an outline of responses to points that might come up.
(Petitioners might also create a list of points for rebuttal.) Be prepared to
speak extemporaneously from your outline. Do not read from the page
and do not take more paper in than you can see while standing at the
podium without shuffling through them. A practice or two will help you
memorize key points; if you do not have them memorized then at least
know where to find things immediately.

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 Try to relax and to engage the judges—if you can, treat argument as a
conversation, not a debate. Justice Scalia’s book recommends treating
oral argument as a discussion between a young associate and a senior
partner.

 Make sure you know and understand the case, the facts, and the law. You
want the judges to trust you and your judgment about the case.

 Practicing in front of your friends may help you work on smooth

transitions and become more comfortable with the subjects (thus avoiding
the admonition against pronouns, discussed below).

Tips for Successful Oral Advocacy

3 THE INTRODUCTION

 The standard Supreme Court oral argument opens with “Mr. Chief
Justice, and may it please the court…” For purposes of moot court (and to
avoid gender issues and ambiguity regarding who is chief), this may be
reduced to “May it please the court…”

 Memorize a short intro that includes a one-sentence synopsis of each of

your arguments. You can proceed from there to a longer explanation if
the judges allow it.

 Begin with your arguments. Do not waste your already-short time by

summarizing the issues, the law, the standards, or anything else that was
in the briefs. Give detail if the judges seem unfamiliar with a point or
want more detail, but in general you should assume that the judges are
familiar with the underlying issues. They do their jobs and are usually
well-prepared for argument, so they will quickly tire of overviews and
summaries of the case.

DURING THE ARGUMENT

 Stop speaking immediately when a judge asks a question. Never speak

over a judge. If you were making a critical point, find a way to get back
to it. (But ask yourself: was it really that important?)

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 Never interrupt a judge as he or she is asking a question. Wait for the
entire question.

 Show respect for the judges at all times. Never attack the judges, even if
you disagree with their arguments. Do not display frustration with a
judge by sighing, rolling your eyes, or shaking your head. Attempt to
persuade, and if the judge is lost as far as your essential argument is
concerned, you can respectfully acknowledge a disagreement or tactfully
change the subject and try to persuade the remaining judges.

 Before the round, establish what you do and do not need to defend. Think
about: (a) what you absolutely must defend (your bottom line), (b) what
you want to persuade the court of in order to have a good chance of
winning (your likely outcome), (c) and what is the most you could
possibly hope to convince the court of (your best case scenario). Make a
decision tree if necessary. Consider what impact losing one of your points
would have for the rest of your argument: Do you have alternative or
back up arguments? Or, is a seemingly minor/innocuous point actually
quite crucial?

 A corollary to the above is that it may be well worth conceding a minor

point (or simply moving on) for the sake of time. You only have so much
time, and if you need to drop a minor point in order to get to your major
issues, do so. Planning ahead will allow you to know which points you
can drop (if only for the sake of argument) without conceding your entire
case.

 Create a short list of the few points you absolutely must get out, and refer
to it as your argument nears its end. This list should be shorter than you
think; getting to all of them may be substantially more difficult than you
anticipate.

Tips for Successful Oral Advocacy

4 DURING THE ARGUMENT (CONT.)
 Be direct in your answers, but take time and get the answers correct.
Pause to consider a question before answering, if necessary.

 Do not make your claims too broad. Know exactly how far you can push
your assertions. If you claim too much, judges will demand that you
support your claims—and if you can’t support them, then you will lose
credibility. Establishing what you need to defend before the round will

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 help you avoid this mistake. (Conversely, if you claim too little, you may
not establish your case or may concede a key point—and the judges may
think you too timid.)

 If possible, pause and break your answers down. Many skilled advocates
will often do something like the following: “No, your Honor. That case
does not control here, for three reasons. First…” But only do this when
you have three actual responses to a point, because you may be asked for
all three.

 Use concrete examples or analogies when possible. Think of some ahead

of time.

 If there are important statutory provisions, cite to them: “Section 401 says
X.” Similarly, if there are talismanic phrases from a case (e.g., “fair play
and substantial justice”), be able to quote them. If you don’t want to
memorize them, have a handy sheet ready with the key language and
references. Memorize what you can but have the sheet ready for things
that come up. Refer to page numbers of your brief (or appendix) if it will
help.

 Make use of nonverbal communication skills. For example, rather than

asking for a clarification afterwards, it is possible to signal confusion over
a portion of a question. But be careful about doing this, and only do so
sparingly.

 Do not ask questions of the judges (and certainly do not expect a

response). If you need clarification of a question, it is possible to signal
confusion over a portion of a question nonverbally. Or, you may begin
your answer with “If I understand your Honor correctly that X means
Y…” or “Perhaps I do not understand what your Honor meant by X,
but…” If your understanding is not correct—or if there are several
possible understandings—the judge will often jump in to clarify.

 Look at a judge’s questions as communicating to you what he or she is

thinking. Try to understand each question as a concern: what bothering
the judge and causing him or her to ask this question? The judge’s actual
concern may lie much deeper than the particular question being asked. So
address the question, but try not to do so superficially; try to speak to the
underlying concern. Look for patterns in questions: is a judge asking
several questions along a similar approach, or using similar arguments? If
so, speak to that argument as well as answering the question.

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  Try to transition from answering one question to discussing a different
point you want to address. Use tie-ins to get back to points you want to
make. Similarly, if there is a lull in the questions, take the initiative to
lead the argument in a direction you want it to go.

Tips for Successful Oral Advocacy

5 CLOSING
 Have a short closing statement memorized. It should be about two
sentences; you will likely not have time for more. Draft it in advance. If
possible, emphasize a strong point from your round. You can be creative,
but be brief.

 Your last statement, if you can, should be a simple request that the court
affirm (or reverse) the court below.

 Do not ignore time limits, even if the judges move beyond them. If you
are over time or are constantly peppered with questions even after time,
you may mention that you are over time (“I see that my time has
expired…”) and, in extreme cases, ask for permission to finish up. It is
acceptable to give a short closing after time, but it should be the
formulaic closing ( “X, Y, …please reverse the court below.”) and only
last a few seconds.

STYLE AND DEMEANOR

 Avoid overusing hand gestures. Be aware of the gestures you are using.
In general, it is best to avoid them if you are not sure you have control
over what you are doing. If you are confident with your hand gestures,
then it is possible to use them effectively for emphasis.

 Be aware of fidgeting with your hands, tie, pockets, skirt (or, conversely,
having a death grip on your tie, jacket, etc.), or any other nervous habits
that may be distracting.

 It is not uncommon for advocates’ hands to shake, particularly at the

beginning of an argument. If they do, rest them gently on the podium or
clasp them loosely in front of you.

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Do not point at the judges.

 Do not use a pen to point or hold it in your hand; it will only distract.

 Do not lean on the podium or brace yourself against it. Stand behind it (a
minor step back or very slightly to the side can display your confidence),
but do not use it for support.

 Do not pace. Moving around can be used to emphasize a point, but only if
done so sparingly.

 Do not lean or shift your weight back and forth; keep your weight
centered. Shuffling or swaying is distracting.

 Think about your volume. Be sure you can be heard by the judges. At the
same time, be aware that yelling at the judges is aggressive and
unpersuasive. Use your tone and volume to emphasize key points in your
argument or key words in a phrase.

 Make eye contact with the judges. If there are multiple judges, share your
eye contact with them all (focus on the one looking at you at a given
time). But don’t stare—it’s creepy.

Tips for Successful Oral Advocacy

6 TIPS FOR ANSWERING QUESTIONS

 Speak directly. Do not use “I think,” “I believe,” “we believe,” “we

argue,” or any variation of these. Speak as though everything you say is a
fact: “That is correct because…” or “Case X does not apply here…”
Phrases and terms that distance you from your own arguments detract
from their strength, leave room for disagreement, and suggest to the judge
than even you do not truly believe what you are saying.

 Speak clearly. Be familiar with the subjects—especially your client’s

name and the names of major figures—and avoid using pronouns (which
is easier if you speak slowly and practice ahead of time). Avoid “this
thing,” “he,” “she,” “they” etc.

 Avoid verbal ticks and “fillers.” Do not say “oh,” “um,” “uh,” or similar
words; likewise, do not fill every pause with “your honor.” Avoid

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 repeatedly beginning sentences with “well,” “however,” or “and.” If you
catch yourself doing this in a practice, concentrate on not doing it.
Practice and get someone to stop you (or point out the offending
word/phrase) each time you utter these words.

 Often, when you say “respectfully,” it’s when you’re not being respectful.
Use sparingly, and only when you’re directly disagreeing with the judge.
(Consider whether it is wise to do so.)

 Try to directly answer the question the judge puts to you before you
expand on your answer. Almost all questions can be answered with a
simple “yes” or “no,” followed by explanation. Or a “yes, however…”
followed by an explanation. If you can answer a question in this way, do
so.

 Never dodge or ignore questions. It is better to give an answer that may

not persuade the judge than give none at all. If the judge found your
answer particularly unsatisfactory, you can always go back later if you
think of something to address the judge’s concern.

 Don’t fight hypotheticals or try to dodge them by saying “that’s not this
case.” Of course it’s not this case—that’s why it’s a hypothetical. But the
judge still wants an answer, so give one and then distinguish the
hypothetical or explain to the court why it is flawed. Otherwise you may
sound petulant and unwilling to answer the questions, and your judges
will be annoyed.

 Some judges (like some professors) may try to make you lose your
confidence or throw you off by questioning or conveying skepticism
about something when you’re actually right. If your point is accurate or
worth making, stick to your guns even if the questions are derisive or
incredulous. (This rule may work less well in real life.)

 Don’t reflexively reject everything a judge says. Some judges will ask
you questions that help you—sometimes because they want to refocus the
conversation or convey something to a fellow judge. Help them help you
by accepting that aid whenever it’s handed out.

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 Tips for Successful Oral Advocacy

7 TIPS FOR ANSWERING QUESTIONS (CONT.)

 Candor may be a virtue. If there’s a question you don’t know the answer
to, it’s acceptable, very occasionally, to admit you don’t know and either
offer a reasoned guess (or a reason why the answer is irrelevant) or move
on. The judges do not expect you to have an encyclopedic knowledge of
the law, and (if they’re good) they’ll push you into territory you’re not
expecting. This, of course, is not an excuse for not knowing answers
regarding the core legal and factual issues of your case.

 Sarcasm or indignation should almost never be used. In a courtroom, they

signal an inability to be professional and engage arguments on their
merits.

 In the vast majority of circumstances, humor in a courtroom falls

embarrassingly flat (at least the intentional kind). Only use humor if you
know you have developed a rapport with your judges and you are 110%
certain you will not squander that rapport. In general, humor should be
avoided.

 Be professional and courteous to your opponent (who is “your colleague”

or “opposing counsel” or “counsel for Petitioner/Respondent”). Disagree
with his argument; use his words against him; but don’t be petty,
belittling, or unfair; don’t mischaracterize or misquote him; and, above
all, do not make personal attacks.

· Begin your submission with the following statement:

“May it please the Court, my name is ________ and I appear on behalf of

______. My submission will address…”

Conclude with one of the following statements:

“That concludes my submission. May I be of any further assistance to the

Court?”
or
“Unless the Court has any further questions, that concludes my submission (on
behalf of)…”

20
 Other useful phrases include:

‘I will show that’. . . rather than ‘I will argue that . . . ‘

‘In my respectful submission . . .’

‘My opponent’s (or opposing counsel’s) argument overlooks that . . .”

‘The court should’ . . .rather than ‘the court must . . .’

Answering Questions

When asked a question, answer ‘yes’ or ‘no’ and then explain your answer.

It is appropriate to pause (briefly) before answering a question from the bench.

If you are unclear or uncertain about a question posed by the court, some of the
following phrases may be useful:

“I would be obliged if the Court would clarify the question.”

“I’m afraid I don’t understand the Court’s point.”

“I accept the Court’s point, however, it is my submission that…” [or] “I would

submit that…”

Avoid phrases like “I think”. “I believe”, “I feel”. Speak about your submission
in formal terms - ‘we submit’, ‘it is our submission’ or ‘it is submitted’. While
you are presenting an ‘argument’ to the court, you are not arguing with it. Avoid
saying ‘we argue’ or ‘it is our argument’.

You address the judges individually as ‘judge or ‘the Court’.

Listen to the bench and to your colleagues to gauge what points are of particular
concern to the court.

Never interrupt a judge. If a judge interrupts you – stop speaking and listen
carefully to the judge’s question or comment.

Always be deferential to the Court. Observing etiquette is an important part of

advocacy and moot court.

21
How to write a Moot Court brief

If law school isn't competitive enough for you, add moot court to your life!
Instead of the traditional mock trial competitions, moot court is appellate
advocacy at its finest. Here, we'll discuss how to write the brief side of moot
court for both classes and competitions.

Instructions

1. First, read the problem carefully. The facts and procedural posture of the case
will become very important as you hone in on your research. For instance, was
the case disposed of at summary judgment? did it get to a jury? are there
evidentiary issues? whose burden was it to challenge the adverse ruling?

2. Begin the research. There are two ways to start. If the problem lists cases or
shows some legal analysis in the fact pattern, then start researching by looking
at the cited cases. If the problem does not cite legal analysis, then skip to step 3.

3. After you've completed step 2, the real research begins. The best way is to
start broadly and progressively get smaller. Start with law review articles or
treatises (AmJur and ALR are the big ones, and each state has different, more
specific versions like CalJur or Witkin).

4. With a broad understanding of what the law is in various jurisdictions

through the treatises and law review articles, you can now start looking at
individual cases. Keep an eye out for cases that have similar fact patterns to
your own, the analysis may be very persuasive to a judge when you write your
brief.

5. Make sure you keep a log of your research so that you don't have to duplicate
your steps. I keep mine in a legal pad, though notebooks work just as well.
Loose leaf paper tends to get lost, so avoid distracting problems like that.

6. When you finalize your research, outline your thoughts, with particular
emphasis on including case names and page citations to save time once you start
writing. The outline should form the basis for your actual writing, and the
headings for the outline should give a good idea of what your argument will be
in each section.

7. Start writing. Everyone has their own style, so find yours. One way to write
each section is using IRAC, which stands for Issue, Rule (statutory or judicial),

22
Analysis, Conclusion. Make sure your arguments address both sides of the
point, with far more emphasis on your own argument of course!

8. Ask someone else to peer edit your work. Whether it's a fellow student, TA,
or instructor, a fresh set of eyes will always help in shoring up loose arguments
and loose language.

23
 How to Think Like a Lawyer

Law professors and practicing attorneys can’t talk about “thinking like a
lawyer” without bringing up the 1973 film “The Paper Chase.”[1] In the film,
Professor Kingsfield tells his first-year law students: “You come in here with a
head full of mush and you leave thinking like a lawyer.” Although law
professors remain fond of telling students they’re going to teach them how to
think like a lawyer, you don’t have to attend law school to enhance your own
logic and critical thinking skills.

Part1
Spotting Issues
1.
Approach a problem from all angles. To see all the possible issues in a set of
facts, lawyers look at the situation from different perspectives. Putting yourself
in others’ shoes allows you to understand other points of view.
 On law school exams, students learn to structure their answers using the
acronym IRAC, which stands for Issue, Rule, Analysis and Conclusion. Failure
to spot all possible issues can derail the entire answer.[2]
 For example, suppose you’re walking down a street and notice a ladder leaned
against a building. A worker on the top rung is reaching far to his left, cleaning
a window. There are no other workers present, and the bottom of the ladder juts
out onto the sidewalk where people are walking. Issue spotting involves not
only looking at this situation from the viewpoint of the worker and the person
walking on the street, but also the building owner, the worker’s employer, and
potentially even the city where the building is located.
2.

Avoid emotional entanglement. There’s a reason you might say you were
“blinded” by anger or another emotion -- feelings aren’t rational and keep you
from seeing facts that may be important to solving a problem.
 Accurately spotting the issues is important to determine which facts are relevant
and important. Emotions and sentiment can cause you to become attached to
details that bear little to no importance to the outcome of the situation.
 Thinking like a lawyer requires putting aside personal interests or emotional
reactions to focus on real, provable facts. For example, suppose a criminal
defendant stands charged with molesting a small child. Police arrested him near

24
 a playground, and immediately began asking him why he was there and his
intentions regarding the children playing nearby. The distraught man confessed
he planned to harm the children. The details of the case may be revolting, but
the defense attorney will set aside the emotional trauma and focus on the fact
that the defendant was not informed of his right to remain silent before he was
questioned.[3]

3
Argue both sides. Non-lawyers may perceive this ability as a moral failing in
lawyers, but it doesn’t mean lawyers don’t believe in anything. The ability to
argue both sides of an issue means you understand that there are two sides to
every story, each of which has potentially valid points.
 When you learn how to make opposing arguments, you also learn how to hear
them, which increases tolerance and allows more problems to be solved
cooperatively.[4]
Part2
Using Logic
1.

1
Deduce particular conclusions from general rules. Deductive reasoning is
one of the hallmarks of thinking like a lawyer. In law, this pattern of logic is
used when applying a rule of law to a particular fact pattern.
2
Construct syllogisms. A syllogism is a particular type of deductive reasoning
often used in legal reasoning, and asserts that what is true for a general group
will also be true for all specific individuals in that same group.[5]
 Syllogisms consist of three parts: a general statement, a particular statement,
and a conclusion about the particular based on the general.

25
 The general statement typically is broad and nearly universally applicable. For
example, you might say “All dirty floors show negligence.”
 The particular statement refers to a specific person or set of facts, such as “This
restaurant's floor is dirty.”
 The conclusion relates the particular back to the general. Having stated a
universal rule, and having established that your particular person is a part of the
group covered by the universal rule, you can now arrive at your conclusion:
“This restaurant floor shows negligence.”
3
Infer general rules from patterns of specifics. Sometimes you don’t have a
general rule, but you can see several similar situations in which the same thing
happened. Inductive reasoning allows you to conclude that if the same thing
happens enough times, you can draw a general rule that it will always happen.
 Inductive reasoning doesn’t enable you to make any guarantees that your
conclusion is true. However, if something happens regularly, it’s probable
enough for you to rely on when creating a rule.
 For example, suppose no one’s told you that, as a general rule, a dirty floor
shows negligence on the part of a shop employee or shop owner. However, you
observe a pattern in several cases where a customer slipped and fell and the
judge ruled the owner was negligent. Because of his negligence, the owner had
to pay for the customer's injuries. Based on your knowledge of these cases, you
conclude that if a shop floor is dirty, the shop owner is negligent.
 Only knowing a few examples may not be sufficient to create a rule you can
rely on to any great extent. The larger the proportion of individual cases in a
group that share the same trait, the more likely the conclusion is to be true.[6]
4
Compare similar situations using analogies. When lawyers argue a case by
comparing it to an earlier case, they’re using an analogy.
 Lawyers try to win a new case by demonstrating that its facts are substantially
similar to the facts in an old case, and thus the new case should be decided the
same way as the old case was.
 Law professors teach law students to reason by analogy by proposing
hypothetical sets of facts for them to analyze. Students read a case and then
apply that case’s rules to those different scenarios.

26
 Comparing and contrasting facts also helps you determine which facts are
important to the outcome of the case, and which are irrelevant or trivial.[7]
 For example, suppose a girl in a red dress is walking through a store when she
slips and falls on a banana peel. The girl sues the store for her injuries and wins
because the judge rules the store owner was negligent in not sweeping the floor.
Thinking like a lawyer means identifying which of the facts were important to
the judge in deciding the case.
 In the next town over, a girl in a blue dress is walking to her table at a café
when she slips and falls on a muffin wrapper. If you’re thinking like a lawyer,
you’ve probably concluded that this case has the same outcome as the previous
one. The girl’s location, the color of her dress, and what she tripped on are all
irrelevant details. The important, and analogous, facts are an injury that
occurred because a store owner was negligent in his or her duty to keep the
floors clean.
Part3
Questioning Everything
1.
1.Break down assumptions. Like emotions, assumptions create blind spots in
your thinking. Lawyers seek evidence to prove every factual statement, and
assume nothing is true without proof.
2.
2
Ask why. You may have had experience with a young child who asked “why?”
after everything you said. Although that can get annoying, it’s also part of
thinking like a lawyer.
 Lawyers refer to why a law was made as its ‘‘policy.’’ The policy behind a law
can be used to argue that new facts or circumstances should also fall under the
law.
 For example, suppose that in 1935, the city council enacted a law prohibiting
vehicles in the public park. The law was enacted primarily for safety concerns,
after a small child was hit by a car. In 2014, the city council was asked to
consider whether the 1935 statute prohibited drones. Are drones vehicles?
Would prohibiting drones advance the law’s policy? Why? If you’re asking
those questions (and recognizing arguments that can be made on both sides),
you’re thinking like a lawyer.

27
 Thinking like a lawyer also means not taking anything for granted.
Understanding why something happened, or why a certain law was enacted,
enables you to apply the same rationale to other fact patterns and reach a logical
conclusion.
3
Accept ambiguity. Legal issues are seldom black and white. Life is too
complex for legislators to account for every possibility when they write a law.
 Ambiguities allow for flexibility, so laws don’t have to be rewritten every time
a new scenario comes along. For example, the Constitution has been interpreted
to relate to electronic surveillance, a technological advance the Framers
couldn’t have imagined.
 Much of thinking like a lawyer involves being comfortable with nuances and
gray areas. However, just because those gray areas exist doesn’t mean
distinctions are meaningless.

28
 LOGIC AND LEGAL REASONING: A GUIDE FOR LAW STUDENTS
I consider the invention of the syllogism one of the most beautiful, and also one
of the most important, made by the human mind.
In legal writing, it is not enough for an argument to “make sense” or “get the point
across.” A legal argument must exhibit what your Course pack refers to as
2
“pristine logic.” In order to exhibit “pristine logic,” a legal argument should
adhere to the form of the logic syllogism.
A syllogism consists of a major premise, a minor premise, and a conclusion. A
major premise usually states a general rule. In legal arguments, this is generally
a statement of law. A minor premise makes a factual assertion about a particular
person or thing or a group of persons or things. In legal arguments, this is usually
a statement of fact. A conclusion connects the particular statement in the minor
premise with the general one in the major premise, and tells us how the general
rule applies to the facts at hand. In legal arguments, this process is called applying
the law to the facts.
Example: To qualify as a “citizen” of a state for purposes of diversity
jurisdiction, a party must (1) currently reside in that state and (2)
intend to remain there indefinitely. (Major premise; states a rule of
law.) Here, the plaintiff does not currently reside in North Carolina.
(Minor premise; makes a statement of fact.) Therefore, the plaintiff
cannot be a “citizen” of North Carolina for jurisdictional purposes.
(Conclusion; correctly applies the law to the facts.)
In order for a syllogism to be valid, it must be logically impossible for its premises
to be true and its conclusion to be false. In other words, a syllogism is valid if,
given the truth of its premises, the conclusion “follows” logically such that it, too,
must be true. Note that an argument is not valid simply because its premises and
conclusion are all true. Consider this example:
Example: “All cats are mammals. Some mammals are excellent swimmers.
Therefore, some cats are excellent swimmers.”
Explanation: Each of these statements is true. Cats are indeed mammals.
Some mammals (e.g. whales and dolphins) are excellent swimmers. And,
as it happens, some cats (e.g. tigers and jaguars) are also excellent
swimmers. But this argument is not valid. The fact that cats are mammals
and that some mammals are excellent swimmers doesn’t prove anything
about the swimming ability of cats. Based on the information we’re given

29
 in the premises, it is logically possible that no cat in the history of the world
has ever stepped foot in water. Because it is logically possible for the
premises to be true and the conclusion to be false, this argument is not
logically valid.
The example above is a fallacious argument. Learning how to spot and avoid such
logical fallacies can enormously strengthen your legal writing and advocacy by
helping you adhere to the “pristine logic” of correct syllogistic reasoning.
1
IRVING M. COPI & CARL COHEN, INTRODUCTION TO LOGIC 244
(1994).
2
RUTH ANN MCKINNEY, RESEARCH, REASONING,WRITING, AND
ADVOCACY (RRWA) COURSEPACK, 89-93 (2000).

FALLACIES
[A]rguments, like [people], are often pretenders.
3
- Plato
Fallacious and misleading arguments are most easily detected if set out in
correct syllogistic form.
4
- Immanuel Kant
Definition: A fallacy is an error in reasoning. A fallacious argument is one that
may appear correct, but on examination proves not to be so. Even if the premises
and conclusion are all correct, an argument may still be fallacious if the reasoning
used to reach that conclusion is not logically valid.
Types of fallacies: Modern logicians have identified over one hundred distinct
5
types of fallacy. This handout lists the fifteen types that occur most frequently in
legal writing and advocacy. Most of these fallacies may be grouped in two broad
categories. Fallacies of relevance occur when the premises “miss the point” and
6
fail to provide logical support for the conclusion. Fallacies of ambiguity occur
when the meaning of a key word or phrase shifts and changes, so that the terms
7
do not really “match up” within the argument.
Avoiding and exposing fallacies: Fallacies are extremely common. At first
blush, they often seem persuasive. Because legal arguments can be quite
complex, fallacies can be especially hard to detect in legal memoranda, briefs,

30
and judicial opinions. Knowing how to spot and avoid them can improve your
legal writing and advocacy immeasurably. By familiarizing yourself with the
fallacies listed on this handout and searching for them in your own writing and
the writing of others, you can develop and nurture the habits of “pristine logic”
that all successful attorneys employ.
Getting more help: If you are confused about the rules of logic, or are having
trouble applying them to your own work, please make an appointment to see
Professor Markert or Professor McKinney in the Writing and Learning
Resources Center. The Honors Writing Scholars may also be able to assist you,
and the UNC Writing Center on main campus has a website with additional
examples and explanations of logical fallacies. Go to:
http://www.unc.edu/depts/wcweb/handouts/fallacies.htm.

31
 SPECIFIC FALLACIES
Some of the most common fallacies are listed and described below. As you read
the examples, try to identify for yourself what is fallacious about each one
before reading the explanation that follows.
1. Appeal to Inappropriate Authority. This fallacy arises when the authority
invoked has no legitimate claim in the matter at hand. In legal writing, this fallacy
occurs when we cite a secondary authority or a case from another jurisdiction as
controlling authority. It also occurs when we cite the opinion of an expert in a
matter outside his or her expertise.
Example: “In North Carolina, adverse possession requires actual
entry and exclusive, open and notorious possession, adverse and
under a claim of right, for the full statutory period. Benton v.
Rennick, 22 So. 2d 173 (Fla. 1973); Black’s Law Dictionary 545
(17th ed. 1999).”
Explanation: Note that the case cited is from Florida, and thus is not
controlling in North Carolina. Black’s Law Dictionary may be used
to cite a general definition of adverse possession, but not as support
for what the law in North Carolina is.
Example: “The possession of nuclear weapons is a moral
abomination. Even Edward Teller, the ‘father of the hydrogen
bomb,’ urged the United States to halt production once the full extent
of their destructive power became known.”
Explanation: While it may seem persuasive that even the “father” of
the hydrogen bomb disapproved of its development, note that Teller
was a physicist, not a cleric or moral philosopher His views on
morality are completely outside his expertise.
2. Disconnected Premises. In a standard logic syllogism, there must be exactly
three basic concepts: a “major term” that occurs in the major premise, a “minor
term” that occurs in the minor premise, and a “middle term” that occurs in both
the major and minor premises, but not in the conclusion. (The conclusion should
connect the major and minor terms.) The middle term is the glue that holds the
argument together. That glue must be applied in the right places, or the argument
will fall apart. In a typical legal syllogism, the middle term will consist of either
the elements of a cause of action or the definition of some term of art. Consider
the examples below.

32
Example: “Murder is the intentional killing of a human being. State
v. Jones, 12 N.C. 345, 34 S.E.2d 56 (1929). Here, the defendant is
an escaped convict who was already serving a life sentence for the
murder of a police officer and was apprehended just two miles from
where the victim’s body was found. Therefore, the defendant is
guilty of murder.”
Explanation: In this example, the attempt to create a syllogism is
foiled because there is no middle term. The conclusion tells us that
the defendant is guilty of murder. The major premise (the first
sentence) defines “murder” by telling us the elements of that crime.
Thus, in order to establish the conclusion, the minor premise (the
second sentence) should show us that this defendant’s conduct
satisfied each of these elements. The elements of the crime should be
the “middle term” that connects the premises together. Instead, the
minor premise does not even mention the elements of murder. It
gives us other, extraneous, information about the defendant (i.e. his
prior record and where he was apprehended). Because it fails to refer
back to a “middle term” (the elements of murder), the minor premise
is disconnected from the major premise and the argument falls apart.
Example: “An ‘attractive nuisance’ is a dangerous thing or condition
that could foreseeably cause children to trespass onto land and be
injured. Smith v. Jones, 123 N.C. 45, 56 S.E.2d 78 (1963). Here, the
defendant’s goldfish pond is clearly an attractive nuisance.
Therefore, the defendant may be liable for an injury sustained by a
child in that pond.”
Explanation: In this example, the attempt to create a syllogism fails
because there are four basic concepts, not three, and the premises are
not properly connected by a “middle term.” The major premise (the
first sentence) defines a term of art – “attractive nuisance.” The
definition of this term, not the term itself, should be the “middle
term” that connects the premises together. But the minor premise
does not even mention the definition of an “attractive nuisance;” it
merely asserts that the defendant’s goldfish pond is one. (This is
what your Torts professor would call being “conclusory.”) In order
to form a valid syllogism, the minor premise should show us how
the defendant’s goldfish pond satisfies the definition of an attractive
nuisance. For example, we could point out that a child could easily
drown in the pond and that children are naturally curious about
bodies of water, and therefore that the pond is both dangerous and

33
 likely to cause children to trespass. This would logically lead to the
conclusion that the defendant’s goldfish pond is an “attractive
nuisance.”
But note that this argument would not support the conclusion
originally stated. Having established that the defendant’s pond falls
within the definition of an “attractive nuisance,” we cannot fairly
conclude that the defendant “may be liable for an injury sustained
by a child in that pond.” A valid syllogism must have only three
basic concepts. The concept of the defendant’s liability is a fourth
term that does not appear in the premises. Therefore, this conclusion
does not follow from the premises. What can we do to fix this
problem? Having established that the defendant’s goldfish pond is
an “attractive nuisance,” we must go on to explain why the defendant
may be liable by creating another logic syllogism. For example: “In
North Carolina, a landowner may be liable for injuries sustained by
a child who is lured to trespass by an ‘attractive nuisance.’ Williams
v. Lee, 45 N.C. 67, 23 S.E.2d 123 (1948). Here, as we have seen, the
defendant’s goldfish pond is an ‘attractive nuisance.’ Therefore, the
defendant may be liable for the injuries of a child who trespasses
onto his land because of that goldfish pond.”
3. Irrelevant Conclusion. This fallacy occurs when the premises “miss the point”
and fail to substantiate the conclusion, instead supporting some other, perhaps
unstated, conclusion. Often, this fallacy arises when we advocate for a particular
objective, but offer only generalized support for that objective that could equally
well support an alternative approach. An irrelevant conclusion may also be called
a non sequitur.
Example: “My aunt wants to move somewhere warm and buy
property for her retirement. She also wants to avoid a high property
tax. She had been thinking about Texas, but the property taxes are
quite high there. Therefore, she shouldn’t move to Texas – she
should move to Florida.”
Explanation: Here, the premises (my aunt wants to move somewhere
warm, my aunt wants to avoid a high property tax, and Texas has a
high property tax) do support the conclusion that my aunt should not
move to Texas. But they don’t support the conclusion that she should
move to Florida. In the first place, we aren’t told whether Florida is
warm and whether Florida charges a high rate of property tax. But
even assuming that Florida is warm and does not charge a high rate

34
 of property tax, the premises don’t tell us why my aunt should move
to Florida, as opposed to Arizona, New Mexico, Georgia, Alabama,
etc. Therefore, this part of the conclusion is a non sequitur; it is
logically irrelevant to the premises. Example: “There is no such
thing as a leaderless group. Although the style of leadership may
change depending on the situation, a leader will always emerge or
8
no task would ever be accomplished.”
Explanation: When we put this argument into syllogistic form, the
fallacy becomes clear. The conclusion is that all groups have leaders.
In support of that conclusion, the author offers the premise that if a
leader did not emerge, no task would be accomplished. But this
premise merely establishes that a group must have a leader if it is to
accomplish a task. It does not establish that every group must have
a leader. There could well be (and probably are) groups that never
accomplish any task. Therefore, the premises “miss the point” and
the conclusion is irrelevant to the rest of the argument.
4. False Cause. This fallacy consists in treating something as a cause that is not,
or should not be assumed to be, a cause. Most commonly, the mistake is in
assuming that A caused B simply because A preceded B.
Example: “Underground nuclear tests in Nevada in 1951
precipitated dramatic climatic change in the Southwest. In that year
alone, average annual temperatures across the region rose over two
degrees Fahrenheit.”
Explanation: It is notoriously difficult to predict or explain weather
patterns and climate changes. This particular heat wave may have
been precipitated by any number of factors, and the cause may never
be known. This is not to say that it’s impossible that underground
nuclear testing caused or helped cause the increased heat. But
without any evidence of a specific causal connection between the
testing and the increased temperature, we have no reason to assume
one.
Example: “The defendant fled the state just hours after the crime was
committed. Therefore, he was clearly involved in one way or another
with its planning or execution.”
Explanation: The assumption here is that one thing (the defendant’s
decision to leave the state at a certain time) was caused by something
that immediately preceded it (the crime). But the mere fact that one
35
 thing precedes another is not enough to prove causation. Certainly
many people left the state shortly after this crime was committed.
Should we assume that they were all criminal accomplices?
5. Overzealous application of a general rule. This fallacy occurs when we apply
a generalization to an individual case that it does not necessarily govern. The
mistake often lies in failing to recognize that there may be exceptions to a general
rule.
Example: “Sixty men can do a job sixty times as quickly as one man.
One man can dig a post-hole in sixty seconds. Therefore, sixty men
9
can dig a post-hole in one second.”
Explanation: The problem here is with the failure to recognize that
not all jobs can be done more quickly by sixty men. Although the
general principle may be true, there are exceptions to the rule (like
digging a post-hole). Here, the major premise (the first sentence) is
overzealously applied to a situation it does not properly govern.
Example: “The First Amendment guarantees freedom of speech.
Therefore, our client can not be held liable for anything she has
said.”
Explanation: The First Amendment does not give an absolute,
unqualified right to free speech. For example, the client could be
liable in tort if her words defamed someone. Here, the major premise
(the first sentence) is overzealously stated without regard to several
important exceptions qualifying the general rule.
6. Hasty Generalization. This fallacy is the converse of the preceding one. It
occurs when we move too quickly to establish a broad principle or general rule
based on specific factual observations.
Example: “They say deep-fried food is bad for you. Nonsense. I’ve
been eating corn dogs and french fries my whole life, and I’m in
perfect health.”
Explanation: The speaker could be lucky, genetically gifted, or
blissfully ignorant of the cholesterol slowly hardening in his arteries.
But even if he lived to a hundred and two, his continued good health
would not be enough to displace decades of well-documented
medical and scientific knowledge.

36
 Example: “In the present case, the dog that attacked the small child
clearly had a ‘vicious propensity.’ Two years earlier, that same dog
had bitten a postal worker who came on the property to deliver the
mail.”
Explanation: Here, the premise is that the same dog that bit the child
had bitten a postal worker two years earlier. The conclusion is that
the dog has a “vicious propensity.” Without some strong
precedential support, this argument would almost certainly fail in
court. Two incidents in the span of two years hardly seems enough
to establish a “propensity.” This argument makes a hasty
generalization from two quite possibly isolated events.
7. Circular argument. This fallacy occurs when one assumes the truth of what
one seeks to prove in the very effort to prove it. In other words, an argument is
fallacious when the conclusion lies buried in the premises used to reach that
conclusion. This is also known as begging the question. Question-begging
arguments often mask themselves in clever rhetoric. They can be easy to miss
because they often sound good. Read these examples closely, and see if you can
identify why each is fallacious before you read the explanation immediately
following.
Example: Three bank robbers are dividing up the proceeds from a
recent heist. The biggest, burliest, robber is sorting hundred-dollar
bills in three piles between them. “One for you, and one for you, and
two for me…One for you, and one for you, and two for me…”
Another robber protests, “How come you get two and we only get
one?” “Because I’m the leader.” “Well, how come you’re the
leader?” “Because I’ve got twice as much money as either of you.”
Explanation: Here, the conclusion (I get the most money) is
supported by the major premise (the leader gets the most money)
and the minor premise (I’m the leader). But it turns out that the minor
premise (I’m the leader) depends on the truth of the conclusion (I get
the most money). So if the robber hadn’t assumed from the outset
that he was going to get the most money, the whole argument would
collapse. The argument is “circular” because it assumes the very
thing that it seeks to prove.
Example: Plato wrote: “We must accept the traditions of the men of
old time who affirm themselves to be the offspring of the gods – that
is what they say, and they must surely have known their own

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 ancestors. How can we doubt the word of the children of the gods?”
10

Explanation: Plato’s conclusion is that some ancient humans were

the children of the gods. His premises in support of that conclusion
are that (1) they said so themselves, and (2) one cannot doubt the
word of the children of the gods. But note that these premises only
lead to the conclusion if we also assume that the people who said
they were the children of the gods were the children of the gods, and
this is exactly what Plato is trying to prove. His argument sounds
good, but it doesn’t establish anything as a matter of logic.
Example: “The Supreme Court’s power of judicial review is
inherently undemocratic. When unelected judges reign supreme in
the exposition of the Constitution, it cannot be said that we have a
government ‘of the people, by the people, and for the people.’”
Explanation: Again, the speaker is assuming the truth of what she is
trying to prove in the very effort to prove it. If you look at these two
sentences closely, you will see that they are essentially paraphrases
of one another. Because the second sentence is longer and more
complex, it tends to trick us into thinking that it is a logically distinct
idea – but it is not.
8. Complex Question. This fallacy occurs when the question itself is phrased in
such a way as to presuppose the truth of a conclusion buried in that question. The
solution is generally to root out the buried assumption by “dividing the question.”
Example: “Why is the free market so much more efficient than
government regulation?
Explanation: This question presupposes that the free market is more
efficient than government regulation. It may not be. In order to avoid
this fallacious assumption, the speaker would need to “divide the
question” as follows: “Is the free market more efficient than
government regulation? If so, why?”
Example: “Isn’t it true that your sales increased dramatically after
these misleading advertisements were published?”
Explanation: This question presupposes that the advertisements
were misleading. Either a yes or a no answer might suggest that the
witness had done something wrong. Opposing counsel should object
to the question, and ask that it be “divided” as follows: “Isn’t it true

38
 that your advertisements were misleading? Isn’t it true that your
sales increased dramatically after these advertisements were
published?”
9. Ambiguity. When we use a key word or phrase to have two or more different
meanings in the same argument, we commit the fallacy of ambiguity. Because
many words and phrases are naturally ambiguous (have two or more meanings,
or even a range of meanings), this fallacy often escapes notice.
Example: “An elephant is an animal. Therefore, a small elephant is
11
a small animal.”
10
Id. at 138 (citing PLATO, TIMAEUS).
11
Id. at 144.
Explanation: The word “small” is a relative term; its meaning is not
fixed and unchanging. When it qualifies “animal” it has a different
range of meaning than it has when it qualifies “elephant.” Thus, the
seemingly logical argument is fallaciously ambiguous.
Example: Jonathan Swift said: “No man will take counsel, but every
12
man will take money; therefore, money is better than counsel.”
Explanation: The problem here is an ambiguity in the word “take.”
To “take” counsel means to listen to and heed advice. To “take”
money means to accept a gift of cash. To understand why this
equivocation between two meanings is fallacious, see what happens
when we use one meaning of “take” consistently throughout the
argument: “No man will listen to and heed advice, but every man
will listen to and heed money. Therefore, money is better than
advice.”
10. Composition. We commit the fallacy of composition when we mistakenly
impute the attributes of a part of a whole to the whole itself.
Example: “A strand of rope is weak, and cannot possibly support the
weight of a full-grown person. A rope is nothing but a collection of
weak strands. Therefore, a rope cannot possibly support the weight
of a full-grown person.”
Explanation: This argument is fallacious because it assumes that a
collection of strands (the rope) must share the attribute possessed by

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 each individual strand (weakness). If this were true, we would have
no use for rope!
Example: “The prosecution has offered nothing but circumstantial
evidence. As we have seen, not one of these pieces of evidence
conclusively proves that my client committed the robbery.
Therefore, the prosecution has not carried its burden of proof beyond
a reasonable doubt.”
Explanation: This argument is fallacious because it imputes an
attribute of each individual piece of evidence (insufficiency to prove
guilt beyond a reasonable doubt) to the totality of the evidence.
However, the sum of the evidence – considered together – may very
well prove guilt beyond a reasonable doubt.
11. Division. This fallacy is the reverse of the fallacy of composition. We commit
the fallacy of division when we mistakenly argue that attributes of a whole must
also be present in each part or constituent of that whole.
Example: “A rope is strong, and can easily support the weight of a
full-grown person. A rope is nothing but a collection of individual
strands. Therefore, a strand of rope is strong, and can easily support
the weight of a full-grown person.”
Explanation: This argument is fallacious because it assumes that
each composite part of a rope (a strand) must share an attribute
possessed by the rope as a whole (strength). Note that this fallacy is
the mirror image of the fallacy of composition.
Example: “The spotted owl is disappearing. This animal is a spotted
owl. Therefore, this animal is disappearing.”
12
Id. at 153.
Explanation: The problem here is that what is true of the entire
species (that it is disappearing) is not necessarily true of each
member of that species.
12. Argument from Ignorance. An argument is fallacious when it maintains that
a proposition is true because it has not been proved false or false because it has
not been proved true.
Example: On the Senate floor in 1950, Joseph McCarthy said of a
State Department employee suspected to be a Communist, “there is
13
nothing in the files to disprove his Communist connections.”
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 Example: One’s inability to disprove one’s guilt cannot be taken to
establish it. Such an inference is not just contrary to the values of the
American justice system; it is also irrational.
Example: “The Big Bang theory is a complete and utter lie. This
‘theory’ has been bandied about for decades and no one has ever
been able to point to any conclusive proof.”
Example: Here, the absence of conclusive proof does not establish
that a theory or proposition is false. It merely establishes that the
theory or proposition is still open to some debate.
13. Attack Against the Person. This fallacy occurs when the thrust of an
argument is directed, not at a conclusion, but at the person who asserts or defends
it. This is sometimes referred to as an ad hominem argument.
Example: A lawyer tells a jury that evidence of a witness’s criminal
past proves that the witness was lying.
Explanation: Evidence of this kind may be relevant to establishing
the witness’s general credibility (or lack thereof), but it does not
independently prove that the witness was lying on this occasion. In
common legal parlance, this evidence is “probative, not dispositive.”
Example: During closing argument, a defense lawyer does not
respond to the evidence and legal arguments offered by the
plaintiff’s attorney, but instead characterizes the plaintiff’s attorney
as an untrustworthy “ambulance-chaser” who is only out to collect
his contingent fee.
Explanation: Even if this characterization is correct, it has no bearing
on the evidence and logical arguments offered by the plaintiff’s
attorney.
14. Argument from Force. An argument is fallacious when it substitutes veiled
threats for logical persuasion or when it asserts that something must be the case
because “that’s just the way things are.”
Example: White House Chief of Staff Howard Baker once opened a
cabinet meeting over allegations of misconduct on the part of
Attorney General Ed Meese as follows: “The President continues to
have confidence in the Attorney General and I have confidence in
the Attorney General and you ought to have confidence in the
Attorney General, because we work for the President and because
that’s the way things are. And if anyone has a different view of
41
 that…he can tell me about it because we’re going to have to discuss
14
your status.”
13
Id. at 134 (citing RICHARD ROVERE, SENATOR JOE
MCCARTHY)
14
Id. at 130 (citing White House Orders Silence on Meese, WASH.
POST, Apr. 29, 1988). Explanation: Note that Mr. Baker did not
provide any reasoned explanation for his conclusion that the other
cabinet members should have confidence in the Attorney General.
This argument substitutes a thinly veiled threat for the use of reason.
15. Appeal to Emotion. This fallacy occurs when expressive language designed
to excite an emotion like outrage or pity is used in place of logical argumentation.
Example: “It is time to put an end to these ‘creative’ accounting
practices. Millions have lost their pensions due to the excesses of
these corporate elites. Hopes have been dashed. Lives have been
ruined. This cannot be allowed to continue. For all these reasons, I
urge you to find the defendant guilty as charged.”
Explanation: The social consequences of corporate abuses are
irrelevant to the question of this particular defendant’s purported
liability. If this defendant is not liable, then she should not be
punished for the misconduct of others.
Example: “Ladies and gentlemen of the jury, if found guilty, my
client faces 20 years in prison. But I ask you, can you in good
conscience send a devoted husband and father of four children, a
man who has dedicated his life to providing for his family, who has
participated actively in his church, and who given over 10% of his
income to charities, to prison for such a length of time that he will
not be able to watch his children grow up or support them financially
through their college years?”
Example: Again, the defendant’s character is irrelevant to the
question of his liability. Here, counsel is appealing to the jury’s pity
instead of offering a logical argument in support of her client.
Congratulations! You are now familiar with the fifteen types of fallacy
that most commonly occur in legal writing and advocacy. By actively
avoiding these fallacies in your own work, and exposing them in the work

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of your adversaries, you will continue to develop and strengthen the
powerful tools of “pristine logic” that all successful attorneys employ.

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 Here Are Five Ways That Smart Copywriters Are Like Smart Trial
Lawyers:

1. Spot the Issues

The first year of law school is designed to change the way you think. It’s an
exercise in training the mind to be able to spot the legal issues in any given fact
pattern. Copywriters must do the same, but it’s called identifying compelling
benefits and likely objections. The biggest way to fail with your copy is to fail to
understand the issues that matter to the prospective buyer, so start spotting the
issues first, just like an attorney approaches a new case.

2. Use Short Words

A smart trial attorney knows that a short word is always better than a longer
word with the same meaning, and smart copywriters know the same. Short
words are not only easy to understand, they also effortlessly pack more
emotional power without giving the appearance that you’re “trying too hard” to
persuade.

3. Use Common Expressions

Both attorneys and copywriters must understand who they are speaking to, and
a big part of that understanding involves knowing and using the language the
audience uses. Most people won’t be impressed with your unique vocabulary.
They’ll be much more impressed that you’re “one of them.” Use the
expressions, colloquialisms, and even slang that the people you’re trying to
persuade use, and you’ll communicate more effectively.

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 4. Use Lyrical Language

You don’t have to resort to ridiculous rhymes like Johnnie Cochran, but
language with rhythm and flow is pleasing and easy for the brain to digest.
When choosing your words, be sensitive to opportunities for alliteration,
repetition, and even subtle rhyming.

5. Paint the Right Picture

Great trial attorneys and copywriters understand that words are simply symbols
that trigger mental imagery, and that’s why the right words make all the
difference. Make sure you’re not inadvertently painting a negative picture in the
prospect’s mind with your metaphors and word choice, or you’ll see your
argument fall apart fast.

Drag Out Your Inner Attorney

So that’s a crash course in how thinking like a trial attorney can help you write
better copy. And you didn’t even have to suffer through law school or lawyer
jokes to do it.

What do you think? Do you see any benefit to dragging out your inner attorney
to “win your case” with your copy?

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