LEGAL REASONING

and
LEGAL METHODOLOGIES

Assoc. Prof. Dr. N. T. Phuong Hoa and Assoc. Prof. Dr. P.N. Thanh
CONTENT:
1. INTRODUCTION TO LEGAL
REASONING

2. LEGAL ARGUMENT

3. MEMORANDA AND BRIEFS: BUILDING

A COMPLETE DOCUMENTS

4. ORAL ARGUMENT

5. READING TEXTS ABOUT LAW AND

TEXTS OF THE LAW

6. READING AND UNDERSTANDING

LEGISLATION
 CHAPTER 1

INTRODUCTION TO LEGAL
REASONING
I. THE STUDY OF LEGAL
REASONING

II. THE ART OF LEGAL REASONING

III. EFFECTIVE LEGAL WRITING

STYLE

IV. PARAGRAPHING
1. CONCEPT
What is “legal
reasoning“?
 1. CONCEPT
Broad sense:

“The psychological
processes undergone by
judges in reaching
decisions in the cases
before them”.
Why “judges”?
Psychological processes
comprised of:
Ideas

Beliefs

Conjectures

Hunches

Feelings

Emotions
Narrow sense:

“The arguments that

judge give, frequently in
written form, in support
of the decisions they
render”.
Arguments consist of:

Reasons for the decisions

Justifications for the decisions

 2. Purposes of legal reasoning
study
 The study of legal reasoning in
the broad sense = the study of
judicial psychology and
biography 
 to know judges and their psychology

 to understand what impacts judges’

decisions
 The study of legal reasoning in the

narrow sense = an inquiry into the “logic”

of judicial decision making:

 kinds of arguments judges give

 the relationship between the reasons

and the decisions, the adequacy of
these reasons as support for the
decisions

 Applying this knowledge in one’s

career
 3. Skills required for legal
reasoning study

 Skill: an ability to do an activity or

job well, especially because you
have practised it
Skills required for legal reasoning study

 Critical thinking skills

 General and specific language skills

 Intellectual and technical skills

 Argument construction
3.1 Critical thinking skills
 Essential skills
What is thinking?

Mental activity that helps formulate/

solve a problem, make decision/
fulfill a desire to understand.
Critical thinking is a high-grade
activity of thinking.
A set of skills and attitudes that are
deployed logically and selectively to
evaluate arguments
 The ability to be:
– Curious (being interested
in learning)

– Flexible (being able to

adopt easily to different
situation)

– Sceptical (questioning that

something is true and
useful)
 Excercising judgements shall be based
upon careful:

 Observation of the issues relevant

 Investigation to the matter to which
a judgement is to be
 Consideration made
 Critical thinking skills
include:
 Reasoning logically

 The ability to locate underlying

assumptions (searching for hidden
assumptions; justifying your own
assumptions; judging the rationality of
those assumptions; testing the accuracy of
those assumptions).

 Analytic and argument skills.

 3.2 General and specific
language skills
Grammar, spelling, vocabulary,
punctuation

Appreciation of the influence and

power of language.
Differences between
general and special
language?
 3.3 Intellectual and
technical skills
 How to locate primary and secondary
sources of materials
 How to read texts of the law and the
texts about law
 How to write (using references,
summaries, notes)
Primary source
Direct evidences or original sources of information
created at the time the event occurred

Information which was recorded

first-hand soon after the event occurred.
accounts of
event

data collected
for scientific
studies
historical
documents
 Primary Source
Nelson Mandela wrote his
autobiography about events
in his life called “Long Walk
to Freedom: The
Autobiography of Nelson
Mandela”. This is a primary
document because he wrote
his first hand experiences.
Secondary source

General In legal
meaning profession
 Derived from
primary source
 written about provide
primary sources summaries and
 analyze, interpret, interpretations of
and discuss the law and facts
information about
the primary source.
Why should we use primary
sources?
To explain how major events are
related to each other in time.
To think critically and distinguish
between facts and opinions.
To develop your own conclusions
and analyze how historical events
affect relevant parties.
Why should we use secondary
sources?
To get expert opinions in order to
evaluate what really happened.
To gain insight by examining the
same event from different
perspectives.
To form your own opinion.
To save time by reading
information collected from a
number of different sources.
 Secondary Source
Examples
Books/Articles that review other
sources
 COMPARISON
Primary source Secondary source

 Created at the time of an  Created after event;

event, or very soon after. sometimes a long time
after something
happened.
 Created by someone who
saw or heard an event  Expresses an opinion or
themselves. an argument about a past
event.
 Often uses primary
sources as examples.

To evaluate if the source is primary or secondary 

Check the context and purpose of its use
 Strength Weakness
Primary High accuracy  Time consuming
sources  Hard to find

Secondary  Ease of access  Quality of research

sources
 Low cost to acquire  Not specific to your
needs
 Clarification of research
question  Incomplete
information
 May answer your own
research question  Not timely
 Reading Sources
Ask these basic questions :
– Who wrote this?
– What does it say?
– When was it written?
– Where was it written?
– Why was it written?
 Summing up
It is important to determine the type
of information you are looking at.
– Primary sources are original sources
of information
– Secondary sources summarize,
analyze, or critique primary sources
– Both primary and secondary sources
can be good sources of information,
but you need to critically evaluate
them.
In legal research, legal reasoning
 Primary sources = law generated by a
governmental body or cases.

 Secondary sources: other resources

which may be written by lawyers or
judges or other legal professionals
which comment on the law, categorize
the law or otherwise interpret the
primary sources.
 In Legal Research
 Primary sources can be
either mandatory (binding)
or persuasive.
 Secondary sources are
always persuasive
authority.
 The researcher is always
looking for primary
sources which are
mandatory.
 Some Examples

Primary or
secondary source?
 3.4 Argument construction

Construction
Evaluation
Interpretation
Deconstruction
I. THE STUDY OF LEGAL
REASONING

II. THE ART OF LEGAL REASONING

1. The language as a professional tool

2. Predictive writing and persuasive
writing
3. Planning, rewriting, and work habits
1. The language as a professional tool

The role of language in general

The role of language in legal
profession
 a means of communication

The thoughts are explained and known through the

language
The role of language in legal
profession

Language: professional tool in

legal profession
 The role of language in legal
profession

If your reader’s/listener’s attention is

drawn to the obscurities and other
faults in your writing/presentation,
you and your client will suffer for
several reasons.
First, the typical reader begins to
resist and may not finish reading
because lawyers and judges are
busy people who do not have time
wade through difficult writing.
Second, the reader is tempted to
consider you unreliable/
unprofessional because mediocre
use of the language implies general
mediocrity as a lawyer.
Third, the busy reader may
misunderstand what you are trying to
say. Legal writing should give the
viewer a quick and clear view, without
distractions, of the idea behind it.
 Characteristics of legal language

 ordinary words with specialized

meaning (law suit)

 Latin words and phrases (mens rea –

guilty mind, actus reus - conduct)

 Norman French
 Characteristics of legal language

 Claims that words can be used with

precision

 Ritualized word forms (ex: the truth,

the whole truth and nothing but the
truth)

 Use of words with flexible meanings

(reasonable)
Question:

The role of language to lawyers?

 Viewing it in various aspects
2. Predictive writing and persuasive writing

● Predictive writing:

two purposes

To advise clients To plan litigation

 The legal memorandum

 The most common type of predictive

legal analysis

 It may include the client letter or legal

opinion.
 Functions of predictive writing:

 predicts the outcome of a legal question by

analyzing the authorities governing the
question and the relevant facts that gave rise
to the legal question

 explains and applies the authorities in

predicting an outcome, and ends with advice
and recommendations

 serves as record of the research done for a

given legal question
Persuasive writing:

● the most rhetorically stylized

● framed as an argument

● argues for one approach to

resolving the legal matter and
does not present a neutral
analysis
 Functions of persuasive writing
 to persuade a deciding authority to
favorably decide the dispute for the
author's client

usually submitted to judges (but also to

mediators, arbitrators, and others)

 to persuade the dispute's opposing party.

3. Planning, rewriting, and work habits

 Well organized

 Complete

 Clear

 Concise

 Forceful

 Accurate and precise…

Question:

Which work habits are useful to

legal profession?
Which work habits should be
avoided in legal profession?
Good work habits
Comprehensive and critical views
Well- structured
Concentrating (not to be
distracting)
Language: exact, concise
Style: coherent, cohesive
Argument: logic
evidence, proof
I. THE STUDY OF LEGAL
REASONING

II. THE ART OF LEGAL REASONING

III. EFFECTIVE LEGAL WRITING

STYLE
 EFFECTIVE LEGAL WRITING

1. Clarity and vividness

2. Conciseness
3. Forcefullness
4. Punctuation and other rules of
grammar
 1. Clarity and vividness
 Find the “right” word
 Straightforward, avoid the word that
blurs meaning.
For example: to describe what
happened.
Precise (exact and careful, avoid
insecurity in convoluted
construction)
Figure out exactly what should be
said and then say it precisely (be
confident of writing and reduce fear).

The insecure writer who is not sure

what to say may try to hide that
insecurity in convoluted
constructions.
The insecure writer who is not sure
what to say may try to hide that
insecurity by writing:
the above captioned appeal is
maintained by the defendant as a
direct result of…

Rather than:

the defendant appeals because …

To understand the importance of clarity in
law, consider two things:

 Prove everything you say

 No matter how important the issue, your

reader will be able to spare only a
limited amount of time to ponder what
you write.
 2. Conciseness
important in legal writing for reasons:

 Concise writing is by nature clear and

short;

 The typical readers of legal reasoning

have no time to spare, therefore, they
will either resent inflated verbiage or
will simply refuse to read it.
For example, compare two versions of
the same analysis:
 When the parties
It is important to
agreed to the sale,
note that, at the
neither knew the
time when the
cow was pregnant.
parties entered into
the agreement of
purchase and sale,
neither of them had
knowledge of the
cow’s pregnant
condition.
Because of the fact The seller had
that the cow, previous assumed that the cow
to the contract, had was infertile because
not become pregnant, she had not become
despite planned and pregnant when the
observed exposure to seller tried to breed
bulls whose her with known stud
reproductive bulls.
capacities had been
demonstrated through
past experience, the
seller had made the
assumption that the
cow would not be able
to produce offspring.
Due to the fact that the
Because the seller had
seller had made a
told the buyer about the
statement to the buyer
cow’s history, the buyer
describing the cow’s
did not investigate further.
opportunities to
reproduce and the failures
thereof, there would have
been, in the buyer’s
thinking, no purpose to
any further investigation
or inspection he might
have considered making.
For these reasons, the Thus, the contract did not
contract did not include a provide for an increase in
provision for an upward the purchase price if the
modification in the cow should turn out to be
payments to be made by fertile.
the buyer to the seller in
the event that the cow
should later prove to be
capable of reproduction.
How did the verbose rough
draft on the left become the
concise, finished product on
the right ?
First, some sentences were
rewritten:
 A person or a thing did something

 Carefully chosen nouns and verbs.

 Many modifiers became unnecessary

because their meaning has been
incorporated into nouns and verbs (and
sometimes into more succinct
modifiers).
The cow’s pregnant
The cow was pregnant
condition

Despite planned and

observed exposure to bulls
whose reproductive He tried to breed her
capacities had been with known stud bulls.
demonstrated through past
experience.
There would have been, in
the buyer’s thinking, no
purpose to any further The buyer did not
investigation or investigate further.
inspection he might have
considered making.
Second, words and phrases
were eliminated if they could not
justify themselves:
It is important to note Was deleted because the
that “importance” is
communicated by the
sentence’s placement
and, ironically, by the
rewritten version’s brevity
previous to the contract Was deleted because it is
communicated by the
context
Third, each word and phrase was
weighed to see if the same thing
could be said in fewer words:
at the time when

entered into the agreed to the sale

agreement of
purchase and sale

neither of them neither

had knowledge of knew

Because of the fact that Because

had made the assumed

assumption

would not be able to was infertile

produce offspring

Due to the fact that Because

had made a statement to told

describing the cow’s about the cow’s history

opportunities to
reproduce and the
failures thereof

For these reasons Thus

include a provision for provide for

an upward modification an increase in the
in the payments to be purchase price
made by the buyer to
the seller

in the event that if

the cow should later the cow should turn out

prove to be capable of to be fertile
reproduction
 Excercise
Facts:
• 12 September 2011: a car driven
by Mr. Nguyen Tan H hit the boy
when he suddenly crossed the
street without giving any signals
in advance.
• A car belonged to the XYX Ltd
Company (directed by Mrs.
Nguyen Tuyet A)
• Advise the client on relevant
issues
Draft the memo
 3. Forcefulness

 Forceful writing leads the reader

through ideas by specifying their
relationships with one another and by
identifying the ideas that are most
important or completing.
Relationships between ideas can
be made clear through transitional
words and phrases, and through
demonstrative sentence structure.
accordingly in fact
additionally (in order) to
although in spite of
analogously in even that
as a result instead
because moreover
but nevertheless
consequently not only …., but also
 Some transitional words and phrases
are stronger than others.

 Be careful to select those that

accurately represent the relationship at
hand and that claim neither too little nor
too much.
For example: demonstrative sentence
structure – the other tool for showing
logical relationships – includes, among
other things, the following:
 The amended court rule
provides for such sanctions,
which eliminates the need to
rely on any inherent powers
Subordinate sentence
the court might or might not
elements showing
have to punish attorneys
affirmative relationships
whose vexatious conduct
multiplies the court’s work.
 Although the attorneys here
argues that he made these
motions only after a
thorough review of this
Subordinate sentence
court’s precedents, he has
elements showing
not been able to cite a single
negative relationships
decision in support of his
position.
 The conduct of this attorney
is at least as egregious as
Joinder independent that of other attorneys who
sentence elements to have been so punished: not
emphasize logical only has he served and filed
relationships a frivolous pleading, but he
has made several equally
frivolous motions.
 Forcefulness in legal writing is to
identify the ideas that are most
important or compelling, and there
are several ways of getting that
across.
An emphasized idea can be placed at the
beginning of a sentence, paragraph, or
passage, where it will be most quickly
noticed. Or:

A series of sentences can be arranged so

that the shortest and simplest of them
conveys the emphasized idea.
 Example:

This attorney served and filed a pleading alleging

extremely unlikely facts without making any factual
investigation and under circumstances indicating that
his clients’ only motive for litigation was harassment.
He made numerous frivolous motions, including one
for a preliminary injunction where his clients were in no
way threatened with harm. He has now brought an
appeal without any basis in statute or precedent, and
he has submitted a record and brief not in compliance
with the court’s rules. He has thoroughly disregarded
the professional obligations of an attorney.
4. Punctuation and other rules of grammar

See: Neumann, Jr., Legal Reasoning and

Legal Writing, (Little, Brown and Company,
1990) 387 – 398.
I. THE STUDY OF LEGAL
REASONING

II. THE ART OF LEGAL REASONING

III. EFFECTIVE LEGAL WRITING

STYLE

IV. PARAGRAPHING
 1. Two goals of paragraphing

break your material up into

digestible chunks.
to help you discipline yourself to
confront and develop each theme
inherent in the material.
2. Thesis sentences, topic sentences,
and transition sentences

2.1 Thesis sentence

 a sentence (or two) that states what you are

going to do in your document as a whole.

 a kind of a signpost – something that tells you

where to go - or a map that shows the reader
what direction your paragraph will take.

 Normally comes at the end of the introduction.

If you can summarize your paper in one
sentence, you’re more likely to have a
tightly-constructed, concise, and
readable document.
 Example:
This document examines whether
customary law should be more
effectively recognized in Vietnam.
This document looks at arguments
in favour of and against early
marriage and the governing law.
2.2 Topic sentence

A topic sentence is oftenly the first

sentence in a paragraph.

The topic sentence should identify

the main idea and point of the
paragraph.
 The supporting details in the
paragraph will develop or explain
the topic sentence.
 The topic sentence should not be too
general or too specific.

When considering the options, look for

a topic sentence that is general enough
to show the paragraph’s main idea
instead of just one of its details.
 A good topic sentence is concise and
emphatic. It is no longer than the idea
requires, and it stresses the important
word or phrase.
 Topic sentences should be:
 Short
 Simple
 Clear
 Give a strong idea
 Example:
There are three reasons why Canada is one of
the best countries in the world. First, Canada
has an excellent health care system. All
Canadians have access to medical services at
a reasonable price. Second, Canada has a
high standard of education. Students are
taught by well-trained teachers and are
encouraged to continue studying at
university. Finally, Canada's cities are clean
and efficiently managed. Canadian cities have
many parks and lots of space for people to
live. As a result, Canada is a desirable place
to live.
In Vietnam, land cannot be owned either by individuals or
by entities, whether they are Vietnamese or foreigners. The
Vietnamese Constitution explicitly provides that land is
owned by the entire people of Vietnam and that the State
administers the land for the people. Individuals,
households or entities, however, may become land users
(“land user”) and have land use rights (“LURs”) in
accordance with the Land Law and its implementing
regulations. Land use is very complex in Vietnam. The
considerations are social, historical and economic. Rights
differ depending, among other things, on how land is
received, the nature of the transferor, nature of the
transferee, etc. As you will see through out this paper,
there are also other variables.
In Vietnam, land cannot be owned either by individuals or
by entities, whether they are Vietnamese or foreigners. The
Vietnamese Constitution explicitly provides that land is
owned by the entire people of Vietnam and that the State
administers the land for the people.
Individuals, households or entities, however, may become
land users (“land user”) and have land use rights (“LURs”)
in accordance with the Land Law and its implementing
regulations. Land use is very complex in Vietnam. The
considerations are social, historical and economic. Rights
differ depending, among other things, on how land is
received, the nature of the transferor, nature of the
transferee, etc. As you will see through out this paper,
there are also other variables.
In Vietnam, land cannot be owned either by individuals or
by entities, whether they are Vietnamese or foreigners. The
Vietnamese Constitution explicitly provides that land is
owned by the entire people of Vietnam and that the State
administers the land for the people.
Who can become a land-user? Individuals, households or
entities, however, may become land users (“land user”) and
have land use rights (“LURs”) in accordance with the Land
Law and its implementing regulations. The considerations
are social, historical and economic. Rights differ
depending, among other things, on how land is received,
the nature of the transferor, nature of the transferee, etc.
As you will see through out this paper, there are also other
variables.
Example of revision 1:
Land use is very complex in Vietnam. Individuals,
households or entities, however, may become land
users (“land user”) and have land use rights
(“LURs”) in accordance with the Land Law and its
implementing regulations. The considerations are
social, historical and economic. Rights differ
depending, among other things, on how land is
received, the nature of the transferor, nature of the
transferee, etc. As you will see through out this
paper, there are also other variables.
Example of revision 2:
Land use is very complex in Vietnam. On the one
hand, individuals, households or entities, however,
may become land users (“land user”) and have
land use rights (“LURs”) in accordance with the
Land Law and its implementing regulations. On the
second hand, the considerations are social,
historical and economic. Rights differ depending,
among other things, on how land is received, the
nature of the transferor, nature of the transferee,
etc. As you will see through out this paper, there
are also other variables.
2.3 Transition sentence

Transitions are the sentences or words

that allow readers to follow the flow of an
argument.

Transitions help you to achieve your

goals by establishing logical connections
between sentences, paragraphs, and
sections of your papers.
- Transitions between sections

- Transitions between paragraphs

- Transitions within paragraphs

(See Kim Skorner in kimskorner4teachertalk.com for
examples)
 CHAPTER 2

READING TEXTS ABOUT LAW

AND TEXTS OF THE LAW
Content:
I. Preparation prior to reading
II. Methods of reading
III. Understanding what is being
read
IV. Evaluating what you are
reading
I. Preparation prior to reading
1. Locating texts

2. Ascertaining purpose for reading

 Why am I reading this text?

 What do I hope to get out of it?

Prediction of use and content of text:

- This involves a consideration of what the

writer is saying. This can be judged from the
subject matter and the title.

- The very act of choosing a text involves

prediction; that the text is relevant and
answer questions that you have in your mind.
Content:
I. Preparation prior to reading
II. Methods of reading
1. Skimming:
read very quickly and generally through a
text noting:

- Publication date – for the study of law, it

is particularly vital to know which edition
you are reading; texts can go out of date
due to changes in the law in a matter of
months.
- Index

- Foreword

- Any headings and sub-headings

- Author details

- Introductory paragraphs
- The first sentence or two of
paragraphs following introductions

- Look at concluding paragraphs

This activity assists in deciding the

potential relevance of the text.
Exercise: Human trafficking and its
prosecution: Challenges of the ICC
5.1 Introduction
5.2 Application of the ICC
5.2.1 Acts constituting Attack directed against
any civilian population
5.2.2 Attacks as Widespread and Systematic in
nature
5.2.3 Attacks in furtherance to the State of
Organized Policy
5.2.4 Perpetrator’s knowledge of the attack
5.3 Challenges and Limitations before the ICC
5.4 Conclusion
2. Scanning

Unlike the general skim

through, scanning involves
quickly looking for specific
words, phrases or information.
 Question:
Scan for specific information
on challenges and limitations of
ICC in prosecuting human
trafficking?
 Lack or absence of a precise and accurate
definition of trafficking
 Risk of ignoring the seriousness and
magnitude of HT
 Confusion between the victims of war crimes
and crimes against human trafficking
 Complementary principle of ICC
 Lack of cooperation and support from the
countries
 Lacks of executive powers
 Difficulties in technicalities and logistics
3. In-depth focused reading
Reading will allow attention to be given to
secondary or subsidiary points in the text.
Here, the reading is slower and careful.
Check unfamiliar vocabulary. Some words
and phrases become clear as more text is
read.
Note the type of langue used:
 Technical

 Figurative

 Journalistic

 Academic

 Personal (you must…)

 Impersonal (one must or it is therefore);

 Intimate

 Distanced
 Question:
In-depth reading regarding the
vague definition of human
trafficking?
Content:
I. Preparation prior to reading
II. Methods of reading
III. Understanding what is being
read
Guessing words that you do not know

Do not expect to know all the words you

read. Even as a more extensive
vocabulary is acquired, there will be
words that are not known.
 Identifying main ideas:
Many main ideas will have been
discovered on a first skimming.

A second reading begins the process of

identifying the main points made by the
writer. This aids in the acquisition of a
deeper understanding of the argument
presented in the text.
 Identifying subsidiary ideas:

As the main points are identified, it

is possible to organize the
information and classify secondary,
subsidiary points.
Identifying overall text organization:

Every writer has a different way of

organizing, classifying and structuring
their work. This needs to be ascertained
by any reader who wishes to break into
the text successfully.
Identifying whether the writer is outlining
an area:

 Discussing a specific problem.

 Proposing a solution to a problem.

 Comparing and contrasting ideas.

 Speaking of the present, future or the

past.
Content:
I. Preparation prior to reading
II. Methods of reading
III. Understanding what is being
read
IV. Evaluating what you are
reading
Ascertaining the purpose of the writer

 This is crucial

 Does the writer want to inform you

about something or try to persuade you
of the correctness of a particular point
of view?

 Often a writer will seek to both inform

and persuade.
Ascertaining the argument(s) of the writer

- Some texts are complex not because

they use particularly difficult words or

arguments but because, in order to
understand the full detail of the writer’s
position, extensive knowledge of the
other areas within or outside the
particular discipline will be required.
Ascertaining the attitude of the writer

 Writers are usually biased towards a

certain view in their writing, although
on occasion a writer may be neutral.
 You must be able to gain skill in
identifying a writer’s attitude to the
ideas he or she is discussing.
 You must at least know whether the
writer is neutral or biased.
 A READING STRATEGY

1. Preparation prior 3. understanding 4. Critical evaluation

to reading what is being read of what is being read

intention for
choosing prediction: identifying identifying identifying
reading
texts primary ideas secondary ideas overall text
why am I reading? what is this organisation
what I am reading? likely about?

writer what do I think

2. Methods of reading

attitude?
what is the what is the
(is the
writer's argument?
writer
purpose?
Skimming scanning close/detailed biased?)

argument? style? content?

V. EXERCISE
Reading the provided materials.
 CHAPTER 2.2

READING TEXT OF THE LAW

Rules of language
1. The eiusden generis rule
2. The in pari materia rule
3. The noscitur a sociis rule
4. The expressio unuis exclusio
alterius rule
Rules of language
1. The eiusden generis rule
Statutes often list a number of
specific things and end the list with
more general words.
In that case the general words are to
be limited in their meaning to other
things of the same kind as the
specific items which precede them.
Evans v. Cross 1938

The facts: E was charged with driving his car in

such a way as to “ignore traffic sign”, having
crossed to the wrong side of a white line. “Traffic
sign” was defined in the Act as “all signals,
warning signposts, direction posts, signs or
other device”.

Decision: “Other device” must be limited in its

meaning to a category of such signs. A painted
line was quite different from that category.
Rules of language
2. The in pari materia rule
The court may consider other
legislation dealing with the same
matter in order to interpret the
statute in question.
A crime against safety traffic
The facts: A was charged with a crime
against safety traffic
Governing authorities: The Criminal
Code, the Act on Safety transportation
Money laundering
The facts: A was charged with a money
laundering crime.
Governing authorities: The Criminal
Code, the Civil Code.
Rules of language
3. The noscitur a sociis rule
This rule allows the meaning of a
word to be discovered by the
court considering other words.
Money laundering
The facts: A was charged with a money
laundering crime
Words: money, property
Rules of language
4. The expressio unuis exclusio
alterius rule
If the legislation specifically
states what it affects, then
anything else is not affected by
it.
Other interpretation aids
1. Intrinsic aids (found in the Act
itself)
 The title
 The preamble
 The Interpretation section
 Headings
Other interpretation aids
2. Extrinsic aids (outside the Act
itself)
 The law on issuing legal
documents
 The legal dictionary
 The reports of the drafting
committees
 Texts about law
 CHAPTER 3

LEGAL ARGUMENT
 FRENCH ROOT – ARGUER
LATIN ROOT – ARGUATRI 1. To make clear, convict
To prattle, prate/frequent 2. To assert, prove
3. To accuse

TO
ARGUE

ENGLISH ROOT – TO ARGUE

1 To bring reasons to support or deny a
proposition
2 To maintain that something is the
case by bringing of reasons to prove
that it is so
I. DEFINITION OF ARGUMENT

An argument is a series of statements,

some backed by evidence, some not,
that are purposely presented in order to
prove or disprove a given position.
 Argument consists of two statements of
which one (the premise) is claimed to be
a reason for accepting the other (the
conclusion).

 The term “argument” is sometimes

used to refer to just the reason or set of
reasons for a particular statement.
II. TYPES OF ARGUMENTS

1. Deductive Arguments

 Deductive reasoning begins with a

general proposition and ends with either
a general or particular proposition.
 Deductive arguments

categorial syllogism
general-to-general
(general-to-particular
reasoning reasoning)
 Deductive reasoning begins with a
general proposition and ends with a
general proposition (this “general-to-
general” reasoning is not used in legal
context).
 Example:

Premise one: All mammals are warm blooded

Premise two: All dogs are mammals

Conlusion: Therefore, all dogs are warm blooded

 Deductive reasoning begins with a
general proposition and ends with a
particular proposition (“categorial
syllogism”)
 Example:

Major Premise: All mammals are warm blooded

Minor Premise: Dog Fido is a mammal

Conlusion: Therefore, Fido is warm blooded

 Example:

Major Premise: All human beings have the right

to life.

Minor Premise: Mr. John Nelson is a human

being.

Conlusion: Therefore, Mr. John Nelson has

the right to life.
2. Inductive Arguments

Inductive reasoning begins with a

particular proposition and ends either a
general or particular proposition.
 Inductive arguments

reasoning by reasoning by
generalization analogy
 Inductive reasoning begins with a
particular proposition and ends with a
general proposition (reasoning by
generalization).
Example:
Premise one:
Pavlovian conditioning causes dog Fido to salivate when a
bell rings
Premise two:
Pavlovian conditioning causes dog Rover to salivate when a
bell rings
Premise three:
Pavlovian conditioning causes dog Spot to salivate when a
bell rings
Premise four:
Pavlovian conditioning causes dog Donkie to salivate when
a bell rings
…
Conlusion: Therefore, pavlovian conditioning causes all dogs
to salivate when a bell rings.
 Inductive reasoning begins with a
particular proposition and ends with a
particular proposition (reasoning by
analogy).
Example:

Premise one: Pavlovian conditioning causes dog Fido to

salivate when a bell rings

Premise two: Cat Felix resembles dog Fido by [similarity

A], [similarity B] and [similarity C]

Conlusion: Therefore, pavlovian conditioning causes

cat Felix to salivate when a bell rings.
Premise one Appellate Case 1 held that a contract
concluded by unauthorized person was
void.
Premise two Appellate Case 2 held that a contract
concluded by unauthorized person was
void.
Premise three Appellate Case 3 held that a contract
concluded by unauthorized person was
void.
Premise four… [similar]

Conclusion Therefore, all contracts concluded by

III. LEGAL ARGUMENTS

 Inductive generalization

 Inductive analogy

 Deduction
DEDUCTIVE From general to general From general to particular
ARGUMENTS (categorial syllogism)

Applies legal principles to a

particular case

INDUCTIVE From particular to general From particular to particular

ARGUMENTS (generalization) (analogy)

Create appellate case legal principles Select relevant legal principles

(This type of arguments is popularly to be applied.
used in the common law system. In
Vietnam, due to the features of
continental law system which is
characterized by written law, this type
of arguments is not popular.)
1. Inductive Generalization
(Particular-To-General Reasoning)

Create Appellate Case Legal Principles

Premise one Appellate Case 1 held that a contract
with a vague term was void.

Premise two Appellate Case 2 held that a contract

with a vague term was void.

Premise three Appellate Case 3 held that a contract

with a vague term was void.

Premise four… [similar]

Conclusion Therefore, all contracts with vague

terms are void.
 The case law principle “all contracts with
vague terms are void” will never be certain,
but will remain subject to exceptions and
modifications.

 Modifications to the principle occur

whenever a new appellate case (or new
statute or constitutional amendment) deals
with the enforceability of contracts with
vague terms.
2. Inductive analogy (particular-to-particular
reasoning)

Select relevant legal principles to be

applied.
Premise one The present case deals with [Vague term A],
[Fact B] and [Fact C].

Premise two Appellate Case 1 deals with [Vague term A],

[Fact B] and [Fact C] and helds that the
contract was void.

Conclusion Therefore, the contract in the present case

is void.
 A more realistic example:

 Plaintiff cites Applellate Case 1, which

favors him because it held void a contract
with an arguably vague term;

 Defendant cites Applellate Case 2, which

favors her because it held enforceable a
contract with an arguably vague term; and

 Neither Applellate Case 1 nore Applellate

Case 2 is “on all flours” with the present
case.
 Plaintiff’s analogy:

Premise 1 The present case deals with [Vague term A],

[Fact B] and [Fact C].

Premise 2 Appellate Case 1 deals with [Vague term D],

[Fact E] and [Fact F] and helds that the
contract was void.
Premise 3 Fact B and Fact E are similar.

Premise 4 Fact C and Fact F are similar.

Conclusion Therefore, Appellate Case 1 is controlling

the precedent, and the contract in the
present case is void.
 Defendant’s analogy:

Premise 1 The present case deals with [Vague term

A], [Fact B] and [Fact C].

Premise 2 Appellate Case 2 deals with [Vague term G],

[Fact H] and [Fact K] and helds that the
contract was enforceable.
Premise 3 Fact B and Fact H are similar.

Premise 4 Fact C and Fact K are similar.

Conclusion Therefore, Appellate Case 2 is controlling

the precedent, and the contract in the
present case is enforceable.
 Battle of the Similarities:

Present Case Appellate Case 1 Appellate Case 2

(Plaintiff’s (Defendant’s
arguments) arguments)

Vague Term A Vague Term D Vague Term G

Fact B Fact E Fact H

Fact C Fact F Fact K

 The judge must make three decisions:

First decision Is Vague Term A more similar to Vauge

Term D or Vague Term G?

Second decision Is Fact B more similar to Fact E or Fact

H?

Third decision Is Fact C more similar to Fact F or Fact

K?
3. Deduction (General- To- Particular
Reasoning)

Applies Legal Principles To A Particular

Case
Major Premise All contracts with vague terms are
void.

Minor Premise The contract in the present case

has a vague term.

Conclusion Therefore, the contract in the

(judgement) present case is void.
Case:
 Anna was sitting in the book
store reading a book of that
store
 Without payment for the book,
she put the book into her bag
and left the store.
 Prosecution

Major Premise To steal is to act contrary to

section 1 of the Theft Act 1978.

Minor Premise Anna has stolen a book.

Conclusion Therefore, Anna has acted

(judgement) contrary to section 1 of the
Theft Act 1978.
 Defence thesis Prosecution thesis
Anna has not stolen a book Anna has stolen a book

1. She was drinking coffee and reading. 1. She was seen by a witness
putting the book in her bag.
2. She remembered her child was due for 2. She was stopped outside the
collection from school. store by X. the book was in her
bag.
3. She jumped up, put the book in her 3. The computer system had not
bag and left the store recorded a sale of that particular
book.
4. She is on anti-depressant prescription 4. Conclusion: Anna has stolen the
which is known for the mild confusion book.
it can cause.
5. She had no intention to take the book.

6. Conclusion: Anna has NOT stolen the

book.
 IV. THE IRAC FORMULA IN LEGAL
REASONING

Issue what facts and circumstances brought these

parties to the court (the syllogism’s subject
matter)

Rule what is the governing law for the issue (the

syllogism’s major premise)
Analysis Does the rule apply to these unique facts
(the syllogism’s minor premise)
Conclusion How does the court’s holding modify the rule
of law (the syllogism’s conclusion)
 1. Issue
“The facts of a case suggest an issue”

 The key to issue spotting is being able to

indentify which facts raise which issues.

 The elimination or addition of one fact (such as

time of day …) can eliminate or add issues to a
case thereby raising an entirely different rule of
law.
 2. Rule
“The issue is covered by a rule of law”

 The rule is the law.

 The rule could be common law (that was

developed by the courts) or a statutory law that
was passed by the legislature.

 The overall question regarding the discover of

rules is that what elements of the rule must be
proven in order for the rule to hold true.
 • State the rule

That rule says (paraphrasing):

It is unlawful to treat someone in a manner

that negatively affects the terms and
conditions of employment, if the affected
person is in a “protected class” and is
treated differently from a “similarly
situated person” not in her protected
class.
Each of the logical pieces composed of the
rule is called elements of the rule.
Ex: elements of discrimination are:
 Having the terms and conditions of
employment affected.
 Being in a protected class.
 Being treated differently from a similarly
situated person
 Each of these pieces contain legal terms
that have their own legal rules.
• Cite the rule

The law is based on existing rules. An

argument has no weight unless it says
exactly which rule is being relied upon.
3. Analysis
“compare the facts to the rule to form the
analysis”

There are lots of facts that make up the

client’s story. For the purpose of legal
analysis, we look for “material” facts.
These are facts that fit the elements of the
rule.
 For every relevant fact:

 It is necessary to ask whether the fact

helps to prove or disprove the rule.

 If a rule requires that a certain

circumstance is present in order for the
rule to apply  the absence of that
circumstance helps us reach the
conclusion that the rule does not apply.
4. Conlusion

The conclusion is the shortest part of

equation.

It can be simple “yes” or “no” as to

whether the rule applies to a set of
facts.
 V. ARGUMENT SOUNDNESS

 A sound argument is a valid argument with

true premises.

 You make a sound courtroom argument when

your syllogism is logically valid and you
introduce evidence sufficient to prove its
premises.

 An unsound argument is an argument which

has one or more false premises, or is invalid,
or both.
 Example of sound argument

Major presmise All mammals are warm true

blooded.
Minor premise Fido is a mammal. true

Conclusion Therefore, Fido is warm true

blooded.
 Example of unsound argument

Major presmise All mammals are warm true

blooded.
Minor premise The moon is a false
mammal.
Conclusion Therefore, the moon is false
warm blooded.
 SKILLS FOR GOOD ARGUMENT
CONSTRUCTION

Competent Competent Competent re-

Reflection as
identification location of evaluation of
to
of nature of the potentially problems and
conclusion
problem relevant: solutions
Legal rules
Secondary
text

Competent reading, The drafting

summarizing and of potential
evaluation of relevant solutions
texts
 CHAPTER 4
MEMORANDA AND BRIEFS:
BUILDING A COMPLETE
DOCUMENT
 Examples

 Example 1

 Example 2

 Example 3

 Example 4 (template)
 I. WRITING MEMORANDA

1. Office memorandum format

 A Memorandum heading
 A Question presented
 A Brief answer
 A Statement of facts
 A Discussion
 A Conclusion
 The author's signature
 2. Persuasive memorandum format

 Cover page
 Table of contents
 Table of authorities
 Preliminary statement
 Question presented
 Statement of the case
 Argument, broken up by point headings
 Conclusion
 Indorsement
 II. FACT STATEMENTS: OBJECTIVE
AND PERSUASIVE
1. Fact statements generally

a. Techniques for persuasively stating

facts
 Reflect your theory throughout the
statement.
 Breath life into the fact by telling a
revealing story about people.
 Without mentioning the elements of the
controlling rule or rules, focus on the
facts that would satisfy or negate those
elements.
 Emphasize favorable facts.
 Neutralize the unfavorable facts that
must be reported.
 Start with a punch.
 Humanize your client.
b. Fact ethics
c. The record
 III. QUESTION PRESENTED:
OBJECTIVE AND PERSUASIVE

1. The role and structure of a question

presented
 The role
 The structure
2. How a persuasive question presented
persuades

3. How to evaluate your questions

presented for persuasiveness
 The issue must be stated in terms of
the facts of the case.
 The statement must be eliminate all
unnecessary detail.
 It must be readily comprehensible on
first reading

 It must eschew self-evident conclusion.

 It should be so stated that the opponent

has no choice but to accept it as an
accurate statement of the question.

 It should be subtly persuasive.

 IV. PERSUASIVE POINT HEADINGS
AND SUB-HEADINGS
1. How points and headings work
2. How to evaluate your headings and sub-
heading for effectiveness
 When collected in the Table of contents,
the headings and sub-headings should
lay out a complete and persuasive
outline or your theory.
 Each point should be independent,
complete and free-standing ground for
a ruling in your favor.
 Headings and sub-headings should not
assume information that a judge would
lack when reading the Table of content.

 The sub-headings should be neither too

many nor too few.

 Each heading and sub-heading should

be a single sentence that can be
immediately understood.
 Each point heading should identify the
ruling you want.
 The controlling rules should be
identified in the headings or sub-
headings.
 The one, two, or three most
determinative facts should at least be
alluded to in either headings or sub-
headings.
 Headings and sub-headings should be
forceful and argumentative.
 V. APPELLATE PRACTICE

1. Introduction to appeals

2. The life cycle of an appeal

3. The roles of the brief and of oral

argument

4. Limitations on appellate review

5. Standards of review
 VI. WRITING THE APPELLATE BRIEF

1. Appellate brief format

 Cover page containing a caption and
other information that may be required
by local rules.
 Table of contents
 Table of authorities
 Reason of appeal
 question presented or questions
presented.
 statement of the case
 summary of the argument.
 argument, broken up with point
headings.
 conclusion.
 indorsement
 How judges read briefs

 Developing a theory of the appeal

 Handling the standard of review and the

procedural posture below

 The process of writing a brief

 Ethics on appeal
 ORAL
ARGUMENT
1. To engage the judge’s attention by getting
them interested in the case and motivated
to rule in your favour.
2. to focus the judge’s attention on the few
aspects of the case that are most
determinative.
3. to access to the court’s thinking
 Criteria Oral Written
Nature Multiple-way active One-way passive
cummunication communication
Goals - Overall goals area the
same
- Specific goals are
different?
Language More general More professional

Content - Overview - detailed

- Not detailed
(determinative points)
- Respond to the
questions
Supportive means to - Body language Not available
persuade - Facial expression (eye
contacts)
- Tones
- Attitude
- Appearance (clothing)
 Criteria Oral Written
Evidence of the argument Hard to access Available/easily to access

Flexibility - higher lower

Re-check - impossible possible

1. Opening Statement

 The first opportunity to outline the evidence to

the bench.
 Giving an overview - the big picture of the
case

Oral testimony is normally presented during

trial by a number of different witnesses in a
question-and-answer format → difficult for
the judge or jury to follow → easily get lost in
the details and miss the overall story.
- Usually, the body of the argument begins
most effectively with a statement of the rule
or rules on which your conclusion rests.

- If two or more separate conclusion are being

urged, the transition form one to another
should be clear to the listener.
- The opportunity to tell the bench why this
particular party should win.

Closing argument gives the valuable chance

to help the bench fit the pieces together and to
convince them that the evidence presented at
trial proves you should win.
1. Tone and attitude
 The most effective way to present arguments
is in a tone of what has been called
“respectful intellectual equality”.
- Speak loudly enough that the judges do not
have to strain to hear you.

- Use the tone and volume of your voice to

emphasize the more important things you
say.
- Look straight at the judges – preferably with
eye contact – throughout the argument.

- Stand up straight and do not distract the

court with restless or anxious movement.
▪ Unless asked, avoid multitudes of detail
in discussing authority.
▪ Oral argument works best when focuses
on the big ideas.
Know the record thoroughly, use it to its full
advantage and do not discuss “facts”
outside the record.
▪ Concentrate on the few facts that are most
determinative, and mention along the way
one or two facts that most bring the story to
life.
▪ Some facts do not logically have legal
significance, but they help the judges “see”
the story and put the case into a realistic
perspective.
 Courts are public institutions belonging to
the people. However, courts are also
bureaucratic institutions with very heavy
caseloads.
 Representing in court can be like traveling to a
different country. Courtrooms, like nations, have
unique rules and customs and even a somewhat
different language. Just as with traveling, a
successful courtroom experience depends on
knowing where you want to go, what the rules
are during your journey and what to expect
when you get to your destination.
➢ Dress not merely for business, but in
conservative clothing that conveys the
impression that you are a careful and reliable
professional.

➢ Stand at the lectern thoughout your

argument. Do not stroll out from behind it
unless you must go to your materials in
order to answer a question.
 In court, lawyers do not speak to each
other. They speak only to the bench
and – when the bench gives permission
– to witnesses (and juries if it is a
comon law system).
- Prepare two versions of the same
presentation.

- One version should include the material that

you must argue – in other words, the core of
your case – and, when delivered without
interruption, it should fill no more than 30 to
35% of the time you are allowed.
 The other version is an expanded
development of the first. It includes the first
version, as well as supplemental material
that makes the core of your case more
persuasive, able time.
You will know within the first three or four
minutes of the argument whether the bench
is hot or cold. If it is hot, you can deliver the
core presentation and work the supplemental
material into your answers. If the bench is
cold, you can deliver the expanded
argument.
 Plan your argument by weaving together
policy, the facts, and the controlling rules of
law into a seamless theory.
 Make a list of every weakness in your case
and every question that you would therefore
ask if you were a judge, and prepare an
answer to each of those questions.
 Try also to predict which concessions you
will be asked to make. Figure out which
concessions you cannot afford to make and
which you will have to make in order to
protect the reasonability of the rest of your
case.
 Practice making your argument to a person
who will ask tough questions but who knows
little about your theory of appeal.
 There are a number of ways to prepare notes for you
to use at the lectern. After many arguments, you will
eventually discover the type and style of notes that
work best for you.