Five Methods of Legal Reasoning

1. Rule-Based Reasoning:
Rule-based reasoning is the most important type of legal reasoning. In rule-based reasoning, you take a rule (a statute or a case
holding) and apply it to a set of facts. (This is a type of deductive reasoning.) Richard Neumann has stated that rules have at least
three parts: "(1) a set of elements, collectively called a test; (2) a result that occurs when all the elements are present (and the test is
thus satisfied); and (3) . . . a causal term that determines whether the result is mandatory, prohibitory, discretionary, or
declaratory." (Richard K. Neumann, Jr., Legal Reasoning and Legal Writing: Structure, Strategy, and Style 16 (2005). In addition,
some rules have "one or more exceptions that, if present would defeat the result, even if all the elements are present." (Id.) An
example of a rule would be that intentional infliction of emotional harm occurs if 1) the defendant’s conduct is outrageous, 2) the
defendant’s conduct is intentional, 3) the defendant’s conduct causes, 4) severe emotional distress. The rule would be satisfied if
the facts of the present case satisfies all the elements of the rule. For example, if an ex-boyfriend calls an ex-girlfriend several times
in the middle of the night to harass her (outrageous conduct; intentional conduct) and this causes (causation) her severe emotional
distress (element 4), intentional infliction of emotional distress has taken place.

2. Reasoning by Analogy
Reasoning by analogy concerns finding similarities. Reasoning by analogy in the law occurs when one argues that the facts of the
precedent case are like the facts of the present case so that the rule of the precedent case should apply to the present case. (A is like
B, so the rule from A applies to B.) An example of reasoning by analogy is that the rule that one who keeps a wild animal, like a
tiger, on her property is strictly liable for any damage caused by that animal also applies to pit bulls because a pit bull, although not
a wild animal, is inherently dangerous just like a wild animal. The two cases are never exact; reasoning by analogy is a question of
degree. The writer must convince the reader that the facts of the two cases are similar enough that the rule from the precedent
case should apply to the present case.

3. Distinguishing Cases
Distinguishing cases is the opposite of reasoning by analogy. In distinguishing cases, one argues that the facts of the precedent
case are not like the facts of the present case so that the rule from the precedent case does not apply to the present case. For
example, a toy poodle is not like a wild animal because toy poodles are not inherently dangerous so that the rule from the wild
animal cases that an owner of a wild animal should be strictly liable for any damage caused by that wild animal should not apply to
toy poodles.

4. Reasoning by Policy
With policy based-reasoning, the writer argues that applying a particular rule to a case would create a precedent that is good for
society. For instance, in early products liability cases, lawyers argued for strict liability when a product injured a consumer because
manufacturers could better spread the cost of injuries than consumers. Policy-based reasoning can also be combined with
reasoning by analogy. For instance, one can argue that the policy behind the rule in the precedent case also applies to the present
case so the rule in the precedent case should also apply to the present case.

5. Inductive Reasoning
Inductive reasoning is reasoning from the specific to the general. Lawyers use inductive reasoning to synthesize rules. In other
words, lawyers take the holdings from several cases and by synthesizing those specific cases, they come up with a general rule. To
synthesize a rule look at the similarities among the facts of the precedent cases and the differences among the facts of the
precedent cases. Also, look at the reasoning behind the holdings.
Case 1 holding: A person who owns a tiger that escapes and causes personal injury is strictly liable for that personal injury.
Case 2 holding: A person who owns a tiger that escapes and causes property damage is strictly liable for that property damage.
Case 3 holding: A person who owns a pit bull that escapes and causes personal injury is strictly liable for that personal injury.
Case 4 holding: A person who owns a toy poodle that escapes and causes personal injury is not strictly liable for that personal injury.
Synthesized rule: A person who owns an inherently dangerous animal that escapes and causes personal injury or property damage
is strictly liable for that personal injury or property damage.
Reasoning: Tigers, which are wild animal, and pit bulls, which are breed to be aggressive, are inherently dangerous, while toy
poodles are not. When two innocent parties are involved, the law usually holds the party liable that keeps dangerous things, like
wild animals. The rule applies to both personal injury and property damage.
Update: ABA Publishing has issued my book, Think Like a Lawyer: Legal Reasoning for Law Students and Business Professionals,
which includes many exercises on the Five Methods of Legal Reasoning. It is available from ABA Publishing, Amazon, and many
other outlets.

Evidentiary Standards and Burdens of Proof

In almost every legal proceeding, the parties are required to adhere to important rules known as
evidentiary standards and burdens of proof. These rules determine which party is responsible for
putting forth enough evidence to either prove or defeat a particular claim and the amount of evidence
necessary to accomplish that goal.

The Burden of Proof

Burden of proof. — Burden of proof is the duty of a party to present evidence on
the facts in issue necessary to establish his claim or defense by the amount of
evidence required by law.

The burden of proof has two components. First, the plaintiff must satisfy the burden of production,
which has also been referred to as the burden of going forward. As the terms suggest, this burden
requires the plaintiff to put forth evidence in the form of witness testimony, documents, or objects.
After the plaintiff presents his or her case-in-chief, the burden of production shifts to the defendant,
who then has the opportunity to provide evidence either rebutting the plaintiff’s evidence or supporting
the defendant’s own arguments.

Evidentiary Standards in Civil Cases

Preponderance of the Evidence

Second, the plaintiff must satisfy the burden of persuasion. This burden determines which standard of
proof the plaintiff must follow in presenting evidence to the judge or jury. A standard of proof
determines the amount of evidence the plaintiff or defendant needs to provide in order for the jury to
reach a particular determination. In most civil cases, the burden of persuasion that applies is called “a
preponderance of the evidence.” This standard requires the jury to return a judgment in favor of the
plaintiff if the plaintiff is able to show that a particular fact or event was more likely than not to have
occurred. Some scholars define the preponderance of the evidence standard as requiring a finding
that at least 51 percent of the evidence favors the plaintiff’s outcome.

Clear and Convincing Evidence

In some civil cases, the burden of proof is elevated to a higher standard called “clear and convincing
evidence.” This burden of proof requires the plaintiff to prove that a particular fact is substantially
more likely than not to be true. Some courts have described this standard as requiring the plaintiff to
prove that there is a high probability that a particular fact is true. This standard sets a higher threshold
than the preponderance of the evidence standard, but it does not quite rise to the widely recognized
standard used in criminal cases, known as “beyond a reasonable doubt.”

Substantial Evidence
In administrative law proceedings, the standard of proof that most commonly applies is the substantial
evidence standard. This standard requires the plaintiff or moving party to provide enough evidence
that a reasonable mind could accept as adequate to support a particular conclusion.

Evidentiary Standards in Criminal Cases

Beyond a Reasonable Doubt

The “beyond a reasonable doubt” standard is the highest standard of proof that may be imposed
upon a party at trial, and it is usually the standard used in criminal cases. This standard requires the
prosecution to show that the only logical explanation that can be derived from the facts is that the
defendant committed the alleged crime, and that no other logical explanation can be inferred or
deduced from the evidence. The United States Supreme Court in Victor v. Nebraska, 511 U.S. 1
(1994), described this standard as “such doubt as would give rise to a grave uncertainty, raised in
your mind by reasons of the unsatisfactory character of the evidence or lack thereof . . . . What is
required is not an absolute or mathematical certainty, but a moral certainty.”

Probable Cause

In the criminal law context, there are a few additional standards that apply in specific circumstances.
Another well-known standard is the probable cause standard. This standard focuses on balancing
effective law enforcement practices against the Fourth Amendment guarantee against unreasonable
invasions into citizens’ privacy. In Illinois v. Gates, 462 U.S. 213 (1983), the Supreme Court outlined
the totality of the circumstances test that applies to determining whether a police officer had probable
cause to conduct a search and seizure, and for magistrate judges to use when issuing warrants. The
standard requires police officers and judges “to make a practical, common-sense decision whether,
given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of
knowledge’ of persons supplying hearsay information, there is a fair probability that contraband
evidence of a crime will be found in a particular place.”

Reasonable Belief and Reasonable Suspicion

Other standards used to evaluate evidence in the criminal context include reasonable belief and
reasonable suspicion. Any police actions that are subject to these standards of proof must be based
on grounds that are reasonable in light of the circumstances. Stated differently, a reasonable
suspicion occurs when a police officer “observe[s] unusual conduct which lead him reasonably to
conclude in light of his experience that criminal activity may be afoot and that the persons with whom
he is dealing with may be armed and dangerous . . . .” Terry v. Ohio, 392 U.S. 1 (1968).

Credible Evidence

Another common standard of proof used in some criminal law proceedings is the credible evidence
standard. Credible evidence is evidence that is not necessarily true but that is worthy of belief and
worthy of the jury’s consideration. Some have defined this standard as requiring the jury to conclude
that the evidence is natural, reasonable, and probable in order for it to be credible.