HOW TO WRITE A LEGAL ARGUMENT






by






M. R. Franks

















Copyright © 1998, M. R. Franks, Baton Rouge, Louisiana











Writing a simple, or even a complex, legal argument is easy, and this method will work equally well for a memorandum of law to a trial court, for the argument portion of an appellate brief, or even for a letter to opposing counsel or a client.

Richard K. Neumann, Jr., professor of law at Hofstra University in New York, tells how to write a simple, single-issue legal argument:

1. statement of your conclusion;
2. a statement of the rule that supports the conclusion;
3. proof of the rule through citation to authority, through explanations of how the authority stands for the rule, through analyses of policy, and through counter-analyses; and
4. application of the rule's elements to the facts with the aid of supporting authority, policy considerations, and counter-analyses, thus completing proof of the conclusion.*


To Neumann's four points, the present writer would add a fifth: restate the original conclusion once more at the end.

Neumann refers to "counter-analysis." The present writer calls it prebuttal - rebutting anticipated arguments from the other side before they have even been made.

If the argument is "simple" (i.e., if it involves but a single point or issue), Professor Neumann's paradigm shown above will serve the writer well.


COMPLEX ARGUMENTS

College debate-team members and speech students majoring in public speaking learn this fundamental rule, which applies equally to the written argument: "Tell them what you're going to tell them, tell them, and then tell them what you've told them."

Complex arguments are simple, too. Normally, these involve several points of law that need to be discussed in one document. The easy way to handle this is simply to string together several arguments, using transitions from one to another. Each argument is then made using Neumann's paradigm reproduced and discussed above.

Normally, begin the document by telling the reader what arguments will be made. If any one argument will suffice to win the case, say so: "This memorandum covers three points, any one of which is sufficient to require this honorable court to rule in defendant's favor." If not, just tell the reader what points the memorandum will cover.

After telling the reader what points the document will cover, next make those points, using the points as major headings in the document. Lastly, conclude the entire document by summarizing what has been said, reiterating the client's entitlement to relief.

As an illustration, imagine a memorandum of law must be filed with the court to urge that the client was within her rights in Louisiana to tape record her own telephone conversation with her husband, that her husband's admission of adultery on the tape constitutes sufficient proof of adultery, and that her husband should reimburse the community for the cost of the lavish trip to Europe that he told his wife was for business purposes, but which in reality was to frolic with his "girlfriend."

The argument could be structured as follows. Note that this format discloses exactly what will be said, then makes each argument in sequence using Professor Neumann's paradigm in its entirety for each embedded argument, with transitions from one argument to the next, and finally ends in an overall conclusion.



MEMORANDUM OF LAW

This memorandum is intended to cover three points: (1) that under Louisiana law Mrs. Smithers was within her rights to tape record her own telephone conversation with her husband without his knowledge or consent, and such tape is admissible in court; (2) that her husband's admissions of adultery on the tape make out a prima facie case of adultery; and, (3) that the husband, having squandered community funds on a junket to Europe with his "girlfriend," must now reimburse the community for the funds so wasted.
Turning to the first point:
1. UNDER LOUISIANA LAW, MRS. SMITHERS WAS WITHIN HER RIGHTS TO TAPE RECORD HER OWN TELEPHONE CONVERSATION WITH HER HUSBAND WITHOUT HIS KNOWLEDGE OR CONSENT, AND SUCH TAPE IS ADMISSIBLE IN COURT.
A person in Louisiana may tape his or her own telephonic or face-to-face conversation with another without telling the other person, and such tape is admissible.
Directly in point is Louisiana Revised Statutes 15:1303 C(4), which provides: "It shall not be unlawful under this Chapter for a person not acting under color of law to intercept a wire or oral communication where such person is a party to the communication . . . ."
A prior Louisiana statute prohibiting persons from recording conversations to which they were a party was stricken as unconstitutional in Kirk v. State, 526 So.2d 223 (La. 1988). Telephonic or face-to-face conversations recorded by one party to the conversation without the knowledge or consent of the other parties have been held to constitute admissible evidence in Louisiana. There are too many cases to cite. Illustrative are State v. West, 553 So.2d 945 (4th Cir. 1989), and In re Hagarty, 257 La. 1, 241 So.2d 469 (1970).
If it is urged that federal wiretap laws prohibit the recording of a telephone conversation by a person who is a party to the conversation, that argument was put to rest shortly after enactment of the present-day federal wiretap statute. The case of Meredith v. Gavin, 446 F.2d 794 (8th Cir. 1971), stands as good law to this day, with no contrary cases on the federal level.
Any seemingly opposing cases on the federal level are distinguishable: In each, a true "wiretap" was involved and none of the parties to the conversation made or authorized the recording or knew of the eavesdropper's existence. On the state level, some states (California, Illinois, Massachusetts, Florida and Hawaii, for example) have laws that, unlike Louisiana Revised Statutes 15:1303 C(4), do not permit but specifically prohibit a person recording his or her own conversations with others.
Accordingly, the tape was legally made and is admissible.
Turning now to the second point:
2. MR. SMITHERS'S ADMISSIONS OF ADULTERY ON THE TAPE MAKE OUT A PRIMA FACIE CASE OF ADULTERY.
(Here again, follow the paradigm. Restate in the body or text of your memorandum the conclusion as stated above in the heading. Then state the proposition of law, in this case probably as follows: An admission of adultery by a defendant, if sufficiently detailed as to time and place, is sufficient proof of adultery. Then prove that proposition by citing authority, either Louisiana cases or cases from other states, holding adultery proven by the defendant's admission. Finally apply to the facts, restate the conclusion as to this subpart, and transition to the next point.)
Accordingly, it can be seen that the tape is all the evidence this court or Mrs. Smithers needs of her husband's infidelity.
Turning now to the final point:
3. MR. SMITHERS, HAVING SQUANDERED COMMUNITY FUNDS ON A JUNKET TO EUROPE, MUST NOW REIMBURSE THE COMMUNITY FOR THE FUNDS SO WASTED.
(Once again, use the paradigm to make this argument, citing authority, applying the cited authority to the facts of the instant case, and restating the conclusion as to this subpart.)
Accordingly, Mr. Smithers must reimburse the community for the monies he spent on his girlfriend where the only "business" on this trip was adultery.

CONCLUSION

(Next, wrap the whole memorandum in an overall conclusion, setting it up as a major heading, "Conclusion."):
It can be seen that the tape was lawfully made and is admissible, that it proves plaintiff's case of adultery, and that the defendant must reimburse the community for the family funds he spent on non-family purposes.
Plaintiff asks for a judgment of divorce on grounds of adultery, and for restoration of her property improperly used by her husband to finance an illicit affair.
Respectfully submitted,

There is always a question, of course, just how much "proof of the rule" one should present. If the principle of law is basic and well understood by the court, a simple string citation to the relevant statute or case will suffice - making certain it is in good Blue Book format. If the principle of law might not be understood by the reader, then a quote, or perhaps several quotes, may be needed.

A "string citation," meaning mere citation of the statute or case, should be used only where the point of law is very clear and the statute or case already familiar to the court.

The Harvard Bluebook advocates using single-spaced, indented block paragraphs for quotes of fifty words or more, and in-line quotations using quotation marks for quotes of forty-nine or fewer words. The present writer would not use so wooden a rule. Putting quoted material in an indented block paragraph clearly emphasizes the quoted material, and if that is the writer's intention even a fairly short quote can be emphasized in this way.

There is, of course, a duty not to mislead the court, and a lawyer is ethically required to disclose adverse decisions from the controlling jurisdiction. Matter that must be disclosed but should not be emphasized may, of course, be discussed in a footnote. If an indented block paragraph emphasizes a quote, putting a citation in a footnote does quite the opposite.

In conclusion, Professor Neumann's paradigm works well for structuring an argument of a single point. Complex arguments are made by telling the reader what points will be covered (and if it is the case, whether prevailing on a single point requires a ruling in favor of the client on the entire case). Then each point is used as a major heading, and a separate Neumann paradigm is used to prove each point. After the point is proven, a fifth point (not mentioned in Neumann's four-point formula) is to reiterate the original point just proven (Neumann's item number 1).

Finally, a Conclusion is added as an additional major heading to the document, reiterating the points that have been proven and stating that the client is entitled to whatever relief is requested.

___________________________________________________________________________

*Richard K. Neumann, Jr., Legal Reasoning and Legal Writing 90 (3d ed. 1998). Quoted with permission of Aspen Publishers, Inc. Copyright © 1998, Richard K. Neumann, Jr.





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