Legal Reasoning & Problem Solving

Copyright © 2008 Pearson Education Canada 2-1

Legal Legal Reasoning Reasoning

and and Problem Problem SolvingSolving


1: 1: Legal WritingLegal Writing

Effective legal writing techniques can be learnedEffective legal writing techniques can be learned Most teachers and educational institutions don’t Most teachers and educational institutions don’t

feel it’s their job to teach good writingfeel it’s their job to teach good writing The key to good marks in exams is knowing how The key to good marks in exams is knowing how

to structure an argument and how to present to structure an argument and how to present information in an effective manner.information in an effective manner.

When answering problem questions, you must When answering problem questions, you must analyse the question and write strong, effective, analyse the question and write strong, effective, well-structured essays in response.well-structured essays in response.


The CLEO MethodThe CLEO Method

Four-step method of legal analysis and Four-step method of legal analysis and writing:writing:

CC: Identify the : Identify the ClaimClaim at issue; at issue;

LL: Present the applicable : Present the applicable LawLaw;;

EE: : EvaluateEvaluate the facts of the problem; the facts of the problem;

OO: Identify the : Identify the OutcomeOutcome of your of your argumentargument


Elements of a First-Class Legal Elements of a First-Class Legal EssayEssay

Close attention to the question as it is asked;Close attention to the question as it is asked; Detailed knowledge of the topic addressed, as Detailed knowledge of the topic addressed, as

well as a deeper understanding of the context in well as a deeper understanding of the context in which the topic exists;which the topic exists;

Superlative coverage of the question, including Superlative coverage of the question, including both breadth and accuracy, with no or almost no both breadth and accuracy, with no or almost no significant errors or ommissions relating to the significant errors or ommissions relating to the law at issue;law at issue;

Identification of at least some of the less obvious Identification of at least some of the less obvious points of law;points of law;


A First-Class Legal Essay /2A First-Class Legal Essay /2 Outstanding clarity of structure, argument and Outstanding clarity of structure, argument and

writing style;writing style; Excellent use of supporting information and Excellent use of supporting information and

ideas;ideas; Use of more than one possible line of argument;Use of more than one possible line of argument; Presentation of theoretical arguments Presentation of theoretical arguments

concerning the subject, significant critical concerning the subject, significant critical analysis and thoughtful personal perspective on analysis and thoughtful personal perspective on the debate.the debate.

BUT: the best organization and writing style BUT: the best organization and writing style cannot overcome a lack of knowledge!cannot overcome a lack of knowledge!


Step One: The ClaimStep One: The Claim

Identify the Claim at issue: decide what Identify the Claim at issue: decide what points you need to make to answer the points you need to make to answer the questionquestion

Spot legal controversies, construct Spot legal controversies, construct multiple lines of argument and respond to multiple lines of argument and respond to questions as they are askedquestions as they are asked

Write a two to three sentence opening Write a two to three sentence opening paragraph, where you set forth the claim paragraph, where you set forth the claim quickly and succinctlyquickly and succinctly


Step Two: The LawStep Two: The Law

Present the applicable law by identifying the Present the applicable law by identifying the applicable legal authorityapplicable legal authority

Demonstrate the depth and breadth of your legal Demonstrate the depth and breadth of your legal knowledge as well as the quality of your legal knowledge as well as the quality of your legal reasoning skillsreasoning skills

Include legal support for all your major pointsInclude legal support for all your major points Try to find the best case and use it:Try to find the best case and use it:

the leading case;the leading case; The most specific case;The most specific case; The most factually similar case.The most factually similar case.


Step Two: The Law /2Step Two: The Law /2

Begin with the general rule associated with Begin with the general rule associated with the claim;the claim;

Move to the general rule associated with Move to the general rule associated with the subissues;the subissues;

Set up your specific exceptions to the rule Set up your specific exceptions to the rule and any cases you need to distinguish;and any cases you need to distinguish;

Relate more specific cases to the general Relate more specific cases to the general standard.standard.


Step Three: The FactsStep Three: The Facts

Evaluate the facts of the problem in light of the Evaluate the facts of the problem in light of the legal authority presented in the second step;legal authority presented in the second step;

Illustrate your powers of analysis and persuasion Illustrate your powers of analysis and persuasion as you discuss the extent to which the facts in as you discuss the extent to which the facts in your particular question live up to the general your particular question live up to the general legal standard identified in your discussion of the legal standard identified in your discussion of the lawlaw

Demonstrate some originality in your thinking Demonstrate some originality in your thinking and writing style;and writing style;


Step Three: The Facts / 2Step Three: The Facts / 2

Apply the law to the facts of your case: explain Apply the law to the facts of your case: explain the importance of each of the legal authorities to the importance of each of the legal authorities to your specific fact pattern;your specific fact pattern;

In Step Two (L) you provided an objective In Step Two (L) you provided an objective analysis of the standards that apply to all analysis of the standards that apply to all persons and all situations;persons and all situations;

Now you provide a factual analysis of your Now you provide a factual analysis of your problem;problem;

Discuss the issues that are primarily in dispute.Discuss the issues that are primarily in dispute.


Step Three: The Facts / 3Step Three: The Facts / 3

Track your legal analysis and demonstrate Track your legal analysis and demonstrate how the facts apply to each of those how the facts apply to each of those standards;standards;

Start at the beginning of your law section;Start at the beginning of your law section; Analyse how your facts demonstrate the Analyse how your facts demonstrate the

non-contentious issues;non-contentious issues; Focus on the contentious issues;Focus on the contentious issues; Briefly mention in passing minor issues.Briefly mention in passing minor issues.


Step Four: The OutcomeStep Four: The Outcome

Identify the Outcome of your argument;Identify the Outcome of your argument; An essay that fails to provide a conclusion about the An essay that fails to provide a conclusion about the

arguments made by the parties is incomplete;arguments made by the parties is incomplete; Indicate how you believe the question would be decided Indicate how you believe the question would be decided

by a court – how a court would resolve the issue;by a court – how a court would resolve the issue; Tie up loose ends and come up to a final determination Tie up loose ends and come up to a final determination

about which part of the existing argument controls the about which part of the existing argument controls the disposition of the case;disposition of the case;

Conclude with a single sentence stating the resolution of Conclude with a single sentence stating the resolution of the dispute: indicate who will win!the dispute: indicate who will win!

Ex:”On these facts, the claimant will prevail and will receive Ex:”On these facts, the claimant will prevail and will receive damages in X amount”.damages in X amount”.


Step Four: The Outcome /2Step Four: The Outcome /2

Contextualize your discussion into a larger Contextualize your discussion into a larger debate in that field;debate in that field;

Remember: the important part of writing an Remember: the important part of writing an answer to a problem question is to answer to a problem question is to answer the answer the problemproblem!!

The CLEO method will help you write first-class, The CLEO method will help you write first-class, powerful essays, where you present clearly powerful essays, where you present clearly identified legal authority through sophisticated identified legal authority through sophisticated and well-organized legal arguments.and well-organized legal arguments.


2: Legal Reasoning2: Legal Reasoning

Construction of legal arguments: you must Construction of legal arguments: you must develop argumentative strategies to apply the develop argumentative strategies to apply the law and facts to simulated legal problems;law and facts to simulated legal problems;

A legal argument is a dispassionate appeal to A legal argument is a dispassionate appeal to reason constructed from the evidence and reason constructed from the evidence and applicable legal rules as applied to a set of facts.applicable legal rules as applied to a set of facts.

Argument is a core skill for the study and Argument is a core skill for the study and practice of law;practice of law;


Learning OutcomesLearning Outcomes

You should:You should: be able to define an argument and be able to define an argument and

distinguish between general argument and distinguish between general argument and legal argument;legal argument;

understand the relationship between the understand the relationship between the diagnosis of a problem and the diagnosis of a problem and the construction of rules to solve problems;construction of rules to solve problems;

understand the difference and connections understand the difference and connections between fact analysis and legal analysis;between fact analysis and legal analysis;


Learning Outcomes / 2Learning Outcomes / 2

You should:You should: be able to define and differentiate between be able to define and differentiate between

inductive, deductive and abductive reasoning;inductive, deductive and abductive reasoning; develop critical thinking;develop critical thinking; understand the way in which an argument relies understand the way in which an argument relies

on factual analysis, legal reasoning, persuasion on factual analysis, legal reasoning, persuasion and and critical thinkingcritical thinking.. Exercising careful judgements based upon careful Exercising careful judgements based upon careful

observation, careful investigation, careful observation, careful investigation, careful consideration (always searching for hidden consideration (always searching for hidden assumptions).assumptions).


The ArgumentThe Argument An argument is a series of statements, some An argument is a series of statements, some

backed by evidence, some not, that are backed by evidence, some not, that are purposely presented in order to prove, or purposely presented in order to prove, or disprove, a given position.disprove, a given position.

To engage in the process of argumentation is to To engage in the process of argumentation is to deploy methodically a series of arguments.deploy methodically a series of arguments.

An argument is a journey from problem to An argument is a journey from problem to solution through the medium of the interpretation solution through the medium of the interpretation and application of legal rules to legal problems. and application of legal rules to legal problems.

Solving problems with rules requires Solving problems with rules requires imagination!imagination!


The Legal RuleThe Legal Rule

A legal rule is an oral or written statement guiding the A legal rule is an oral or written statement guiding the conduct of individuals and / or groups infringement of conduct of individuals and / or groups infringement of which may or may not result in compulsory or which may or may not result in compulsory or discretionary action being taken to enforce the discretionary action being taken to enforce the observance of the rule.observance of the rule.

A rule often represents the view of a group concerning A rule often represents the view of a group concerning lawful, moral, social, acceptable, good action.lawful, moral, social, acceptable, good action.

A rule often contains statements about values – it can A rule often contains statements about values – it can communicate statements about justice, ethics, equality communicate statements about justice, ethics, equality and fairness.and fairness.

Its infringement can lead to severe penalties.Its infringement can lead to severe penalties.


LogicLogic

Logic is the science of reasoning, thinking, Logic is the science of reasoning, thinking, proof or inference.proof or inference.

For a lawyer, logic is the study of For a lawyer, logic is the study of propositions and how conclusions may be propositions and how conclusions may be correctly obtained from propositions in the correctly obtained from propositions in the process of reasoned argument.process of reasoned argument.

There are two main types of logic: There are two main types of logic: deductive and inductive –and a third deductive and inductive –and a third process: abduction.process: abduction.


DeductionDeduction In deductive reasoning, the argument has to follow a In deductive reasoning, the argument has to follow a

prescribed form:prescribed form: A major premise: states a generalityA major premise: states a generality A minor premise: states a particularityA minor premise: states a particularity ConclusionConclusion

This form of argument is called a This form of argument is called a syllogismsyllogism: the subject : the subject in the major premise becomes the predicate in the minor in the major premise becomes the predicate in the minor premise and the conclusion is necessary, or compelled. premise and the conclusion is necessary, or compelled.

The major way of attacking a deductive argument is The major way of attacking a deductive argument is through the premises. The conclusion is logically through the premises. The conclusion is logically compelled and cannot be attacked. The major and compelled and cannot be attacked. The major and minor premises, however, may be attacked for minor premises, however, may be attacked for argument.argument.


InductionInduction

In Inductive reasoning, the conclusion, In Inductive reasoning, the conclusion, although also based on premises, extends although also based on premises, extends beyond the facts in the premise.beyond the facts in the premise.

The premise supports the conclusion, it The premise supports the conclusion, it makes it probable – but it is possible that makes it probable – but it is possible that another conclusion exists.another conclusion exists.

The premises only tend to support the The premises only tend to support the conclusion – they do not compel it.conclusion – they do not compel it.


Induction / DeductionInduction / Deduction

Deductive reasoning is a closed system of Deductive reasoning is a closed system of reasoning, from the general to the general or the reasoning, from the general to the general or the particular, including cases where the conclusion particular, including cases where the conclusion is drawn out; it is, therefore, analytical.is drawn out; it is, therefore, analytical.

Inductive reasoning is an open system of Inductive reasoning is an open system of reasoning, involving finding a general rule from reasoning, involving finding a general rule from particular cases and is inconclusive – which particular cases and is inconclusive – which suggests the end processes of legal judgements suggests the end processes of legal judgements are inconclusive. The courts ensure that are inconclusive. The courts ensure that inconclusive reasoning can be enforced.inconclusive reasoning can be enforced.


Logic and TruthLogic and Truth

Like deductive reasoning, the logic of inductive Like deductive reasoning, the logic of inductive reasoning has no interest in the actual truth of reasoning has no interest in the actual truth of the propositions that are the premises or the the propositions that are the premises or the conclusion.conclusion.

Just because a logical form is correctly Just because a logical form is correctly constructed, it does not mean that the constructed, it does not mean that the conclusion expressed is true. The truth of a conclusion expressed is true. The truth of a conclusion depends upon whether the major an conclusion depends upon whether the major an minor premises express statements that are minor premises express statements that are true.true.


Argument by AnalogyArgument by Analogy

Analogy is the most common form of Analogy is the most common form of argument in law. argument in law.

It begins by stating that two objects are It begins by stating that two objects are observed to be similar by a number of observed to be similar by a number of attributes. attributes.

It concludes that the two objects are It concludes that the two objects are similar with respect to a third attribute.similar with respect to a third attribute.

The strength of such an argument The strength of such an argument depends upon the degree of relationship.depends upon the degree of relationship.


Reasoning by AnalogyReasoning by Analogy Judges are involved in a type of inductive Judges are involved in a type of inductive

reasoning called reasoning by analogy. This is a reasoning called reasoning by analogy. This is a process of reasoning by comparing examples. process of reasoning by comparing examples. The purpose is to reach a conclusion in a novel The purpose is to reach a conclusion in a novel situation.situation.

This process has a three-stage process:This process has a three-stage process: the similarity between cases is observed;the similarity between cases is observed; the rule of law (ratio decidendi) inherent in the first the rule of law (ratio decidendi) inherent in the first

case is stated (reasoning is from the particular to the case is stated (reasoning is from the particular to the general: deduction);general: deduction);

that rule is applied to the case for decision (reasoning that rule is applied to the case for decision (reasoning is from the general to the particular: induction).is from the general to the particular: induction).


Relationship between deductive Relationship between deductive and inductive argumentsand inductive arguments

At the level of factual analysis, in relation to law, At the level of factual analysis, in relation to law, deductive argument requires extension by tracking deductive argument requires extension by tracking through the process of inductive reasoning, starting with through the process of inductive reasoning, starting with the minor premise of the deductive argument.the minor premise of the deductive argument.

Inductive reasoning involves putting forward a conclusion Inductive reasoning involves putting forward a conclusion that seems strong, based on inferences that provide that seems strong, based on inferences that provide evidence in favour of one party.evidence in favour of one party.

The final argument will consist of propositions or The final argument will consist of propositions or assertions that will invariably be backed by evidence. assertions that will invariably be backed by evidence. For some law problems, a cluster of arguments may For some law problems, a cluster of arguments may need to be set up dealing with separate issues.need to be set up dealing with separate issues.


Abductive ReasoningAbductive Reasoning

Lawyers inevitably look at possible inductive reasoning Lawyers inevitably look at possible inductive reasoning that counters their own argument, otherwise they could that counters their own argument, otherwise they could be caught by surprise. This involves constructing be caught by surprise. This involves constructing opposing hypothetical theses. opposing hypothetical theses.

The evidence a lawyer has may suggest alternatives, The evidence a lawyer has may suggest alternatives, and perhaps even more plausible alternatives. This and perhaps even more plausible alternatives. This creative process which tends to argue around the data creative process which tends to argue around the data based on hypothetical matters, rather than on matters based on hypothetical matters, rather than on matters known, is called known, is called abductive reasoningabductive reasoning..

It is always a good idea to try and predict counter-It is always a good idea to try and predict counter-arguments to your own. Then you can consider how you arguments to your own. Then you can consider how you would deal with them.would deal with them.


ConclusionConclusion

The essential quality of a well-structured The essential quality of a well-structured argument is that it takes the reader / argument is that it takes the reader / listener from the beginning to the end and listener from the beginning to the end and makes them hold the opinion that the makes them hold the opinion that the argument is correct or the most plausible argument is correct or the most plausible argument. argument.

Sometimes, the process of argument uses Sometimes, the process of argument uses bridges from one fact to another that are bridges from one fact to another that are not made of evidence but inference.not made of evidence but inference.


Conclusion / 2Conclusion / 2

At the everyday level of explanation, a At the everyday level of explanation, a legal argument tends to say:legal argument tends to say: This happened;This happened; The following law states that this behaviour is The following law states that this behaviour is

illegal in certain circumstances;illegal in certain circumstances; These witnesses, these official documents, These witnesses, these official documents,

this forensic evidence prove that it happened;this forensic evidence prove that it happened; It can be proved therefore that X did this;It can be proved therefore that X did this; X, therefore, broke the law.X, therefore, broke the law.


Conclusion / 3Conclusion / 3 An essay may argue about theory, rather than An essay may argue about theory, rather than

fact, but the structures remain the same.fact, but the structures remain the same. Argument construction is not difficult if there has Argument construction is not difficult if there has

been meticulous preparation of information.been meticulous preparation of information. The argument will be basic or elegant depending The argument will be basic or elegant depending

upon the development of skills, understanding of upon the development of skills, understanding of the law, the level of preparation, thought and the law, the level of preparation, thought and reflection that has gone into the argument reflection that has gone into the argument construction.construction.

What one gets back is proportional to the quality What one gets back is proportional to the quality of what has gone in.of what has gone in.

Legal Reasoning & Problem Solving

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Transcript of Legal Reasoning & Problem Solving