Effective Arguments

Effective Arguments

Writing Persuasive Principle-Based Arguments

Effective Arguments are clear and focused,

easy to follow, and meet the Court’s

expectations.

The Court’s Expectations  The Court does not want to read

about every case the attorney found.  The Court wants to know about the

cases that matter in deciding the case.

The Court’s Expectations  The Court wants to know about the

portions of the case that matter in deciding the case.  The Court wants to know up front

why a case matters.

Effective arguments focus on principles, not

sources; are grounded in the law; and illustrate how the legal principles fit with the relevant facts.

An ineffective argument reads as if it was written by a “reporter.” 

“Let me tell you what I found.”

 “Book

report”: a series of case descriptions with no obvious relationship to each other or the issue the court is being asked to decide.  The analogous case descriptions follow the sequence of information in the case. That is, they tend to begin with facts rather than the key principle the case will be used to illustrate.

The “Punch Line”  In a first draft of an analogous case

description, the “punch line” is often at the end—the writer works his or her way to the key point or principle.  However, the writer has the court’s highest attention at the beginning of a sentence and the beginning of a paragraph.

To make your arguments and case descriptions principle-based  move

the punch line (principle) to the front,  move the citation out of the text to keep the focus on the substance,  and eliminate unnecessary lead-ins and detail.

The “Phrase that Pays”  Once

your case descriptions are principle-based, the key word/phrase/principle becomes the thread that you weave through the arguments to keep them focused and easy to follow.

Revising Case Descriptions* Using Principle-Based Topic Sentences *Note: Citations beyond the initial citation have been removed for this exercise.

 In State v. Thorn, 129 Wn.2d 347, 917 P.2d 108

(1996), Spokane Police Officer Karl Peden was on routine patrol shortly after midnight. He saw three people in a car that was legally parked in Friendship Park in suburban Spokane. Officer Peden saw a flicker of light he believed was from a flame being used to ignite a drug pipe. He stopped his patrol car, got out, and approached the parked car on foot. He asked the driver, "Where's the pipe?" There was no evidence in the record regarding Officer Peden's manner or tone of voice. In response, the driver handed Officer Peden a marijuana pipe.

 In concluding that a seizure occurred, the trial court relied on the

fact that Thorn was in a parked car at the time the question was asked, reasoning that "[t]o end the encounter, Mr. Thorn would have had to either start the engine and drive away or would have had to open the driver's door, exit the vehicle and walk away." First, as federal courts have recognized, this increased difficulty in leaving is arguable at best. Moreover, as the Bostick court pointed out, the focus is not on whether the defendant's movements are confined due to circumstances independent of police action, but on whether the police action was coercive. The trial court's ruling was based on stipulated facts. Defendant offered no evidence that the manner in which the officer asked the question was coercive; therefore the defendant failed to meet his burden of establishing that a seizure occurred.

Revising the Description  Move the key point to the topic

sentence.  Move the cite out of the text of

the topic sentence to keep the focus on the substance.

 In determining whether a seizure occurred, the

court focuses not on whether the defendant's movements were confined due to circumstances independent of police action, but on whether the police action was coercive. State v. Thorn, 129 Wn.2d 347, 353, 917 P.2d 108 (1996). Spokane Police Officer Karl Peden was on routine patrol shortly after midnight. He saw three people in a car that was legally parked in Friendship Park in suburban Spokane. Officer Peden saw a flicker of light he believed was from a flame being used to ignite a drug pipe. . . .

Eliminate unnecessary detail. Remember, if you include a

detail, your reader will think it is important and needs to be remembered.

 In determining whether a seizure occurred, the

court focuses not on whether the defendant's movements were confined due to circumstances independent of police action, but on whether the police action was coercive. State v. Thorn, 129 Wn.2d 347, 353, 917 P.2d 108 (1996). Spokane Police Officer Karl Peden was on routine patrol shortly after midnight. He saw three people in a car that was legally parked in Friendship Park in suburban Spokane. Officer Peden saw a flicker of light he believed was from a flame being used to ignite a drug pipe. He stopped his patrol car, got out, and approached the park car on foot. . . .

Eliminate Unneeded Detail  In determining whether a seizure occurred, the

court focuses not on whether the defendant's movements were confined due to circumstances independent of police action, but on whether the police action was coercive. State v. Thorn, 129 Wn.2d 347, 353, 917 P.2d 108 (1996). In Thorn, a police officer saw three people in a parked car. When he saw a flicker of light he believed was from a flame being used to ignite a drug pipe, he stopped his patrol car, got out, and approached the parked car on foot. . . . .

Final Version (191 words/15 lines, down from 254 words/21 lines) In determining whether a seizure occurred, the court focuses not on whether the defendant's movements were confined due to circumstances independent of police action, but on whether the police action was coercive. State v. Thorn, 129 Wn.2d 347, 353, 917 P.2d 108 (1996). In Thorn, a police officer saw three people in a parked car. When he saw a flicker of light he believed was from a flame being used to ignite a drug pipe, he stopped his patrol car, got out, and approached the parked car on foot. He asked the driver, "Where's the pipe?" In response, the driver handed the officer a marijuana pipe. The trial court had concluded that a seizure occurred, reasoning that "[t]o end the encounter, Mr. Thorn would have had to either start the engine and drive away or would have had to open the driver's door, exit the vehicle and walk away." The Supreme Court rejected this reasoning, holding that, because the Defendant offered no evidence that the manner in which the officer asked the question was coercive, the defendant failed to meet his burden of establishing that a seizure occurred.

The “Phrase that Pays”  With the case description refocused to

make it principle-based, the writer can use the principle to construct and focus the argument:

 Jones was not seized because the

officer's actions did not create a coercive atmosphere.

 Defendant/Appellant’s arguments

can also be focused by using the same principle:  Jones was seized because the

police created a coercive atmosphere by . . ..

 Moreover, by organizing your

arguments around principles, you can respond to your opponent’s arguments without emphasizing or “flagging them.”  Consider

the following example.

 The State will likely rely on State v.

Thorn, 129 Wn.2d 347, 353, 917 P.2d 108 (1996), to argue that Jones was not seized because Officer McBride’s actions did not create a coercive atmosphere. However, Thorn is distinguishable. In that case, . . ..

This approach has three drawbacks:  The writer has used space in the brief to

set out the opponent’s argument.  The opponent’s argument is in a position of emphasis—at the start of a paragraph.  The writer’s argument is in the middle of the paragraph and, as a result, deemphasized.

Revising the argument  First, the writer must determine on

what basis the case the opponent will use should be distinguished: What is the main principle to be addressed?  Then, the writer should use that principle to lead into the responsive argument.

Revised:  Jones was seized because Officer

McBride’s actions created a coercive atmosphere. Cf. State v. Thorn, 129 Wn.2d 347, 353, 917 P.2d 108 (1996). In Thorn, the officer merely approached a parked car on foot and asked the occupants a question. Id. In contrast, Officer McBride . . ..

Using principle-based case descriptions can also help you  see

commonalities in cases,  choose the best cases from several that make or illustrate the same principle, and  see where additional case law is needed to strengthen an argument.

Checking for Principle-Based Analysis  After-the-fact Outline: Does each

paragraph have a clear, readily discernible focus you can summarize in a few words? Does each paragraph follow logically from the last?  Highlighting Topic Sentences: Do the

topic sentences set out a logically ordered focused overview of the arguments?