Using a counter-argument is a good way to make it clear that the existing legal authority is unclear, unambiguous or uniform when applied to facts like yours. You may not be able to predict the outcome of your case with certainty given your facts. There may be competing lines of authority, competing political justifications, and/or a lack of cases that go to the heart of your jurisdiction. Using counter-arguments is also an effective way to approach and then dispose of the views of those with whom you are different. Counter-arguments work differently in predictive and persuasive writing. In a law firm memorandum, identifying counter-arguments will help your client assess the strength of a legal position, the availability of defenses against a claim, and other ways to analyze a situation. In persuasive letters such as a brief to a court, counter-arguments address and eliminate the likely arguments that the opposing party will present. In advocacy, the treatment of counter-arguments tends to be shorter and more conclusive than in a law firm memorandum, because the purpose of inclusion is to limit, distinguish, or neutralize the arguments that your opponent has gathered. As a legal writer, it helps to have a selection of qualifiers to recognize how sure or uncertain you are of the actual outcome of the court.
Your conclusion may indicate that your argument that the RAIC/CRRACC is a slam dunk – you are quite confident that the court will rule in the same way – or that the result is really a throw and could go both ways. Or you can convey any level of self-confidence in between. Remember that the reader will judge your credibility as a legal thinker based on (among other things) the consistency of your tone with the available data. CHAPTER 13 LINKS TO INTERNET RESOURCES At the time of writing, there were no websites specifically dedicated to counter-analysis. However, if a search engine such as www.google.com and “Counter-Analysis of Law” is used as a topic, a limited selection of websites can be found (twenty-one when this text was written) that cover an aspect of law and counter-analysis. Some websites include counter-analysis in specific areas of law, such as military law, while others discuss the topic in terms of passing exams at law school. Although some websites briefly mention the role of counter-analysis in the analysis process, no website deals with the subject in detail. If the “legal counter-argument” is used as the topic, a much wider selection of websites can be found (more than two thousand that this text was written). Most of these pages include counter-arguments in specific cases or do not address the role of the counter-argument in the legal analysis process. CHAPTER 13 SUMMARY Counter-analysis is the process of discovering and presenting counter-arguments to a legal position or argument.
This is important because in order to properly solve a legal problem, all aspects of the problem must be taken into account. This includes identifying any potential weaknesses in a legal position and being available to meet any challenges of the position. Counter-analysis should always be used when looking for a legal problem or solving a legal problem. You should always be vigilant and look for counter-arguments. A prerequisite for a counter-analysis is a thorough search for the legal question or argument. This can help you identify some counter-arguments and believe or reject those already identified. Once the research is complete, there are many approaches that can be used to help you with cross-analysis. Since most legal arguments are based on enacted statutes or court opinions, this chapter focuses on various counter-arguments that can be advanced when attacking the use of an enacted statute or judicial opinion.
The list of approaches presented in this chapter does not include all available ways to challenge a legal argument or position. It`s important to make sure you do a counter-analysis with all the listed methods (and any other approaches) when looking for potential vulnerabilities or counter-arguments to a legal position. You can rely on the other side to discover the weaknesses of your position and use them against you. Remember that whenever you look at your client`s case with respect to handling a legal issue, you are negligent if you don`t perform a counter-analysis. Once you have completed your discussion of all the legal powers relevant to your problem statement, you will need to explain how your facts are consistent with existing law. Your goal here is to get back to the problem and fix it that you mentioned in the problem description. In this section, you predict (in a note from a law firm) or argue for (in a letter to the court) a specific resolution of your facts by the court. Here you explain the facts that are relevant to the statement of the question and the next section on rules/proof of rule. In your application section, you may have to deal with areas of uncertainty in legal doctrine and/or competing political justifications. You may also have dealt with a seemingly contradictory set of facts: some seem to fit the requirements of the rule; others suggest that the rule is not being followed. You may have weighed arguments against counter-arguments. After doing all this, you will need to take a stand and make a statement on how the court will/should apply the law.
Facts: The accused is charged with various sexual offences against his daughter-in-law. The daughter-in-law met several times with a psychotherapist. The Court of First Instance rejected the defendant`s request for access to the psychotherapy files after reviewing half of the files. The court concluded that a review of the files had not revealed any information favourable to the defence. On appeal, the Crown argues that the state v. Wilson supported the trial court`s decision. Task: Discuss the counter-argument to the prosecution`s invocation of State v. Wilson. ASSIGNMENT 1 Legislative Law: Article 51-2-314 of the State Commercial Code provides that a “guarantee that the goods are commercially customary is implied in a contract of sale if the seller is a merchant with respect to goods of this type”. A merchant is defined as a person who regularly engages in the purchase and sale of goods of the type sold. Fact: Mary makes wooden rocking chairs at home.
For the past five years, Mary has taken her chairs twice a month to sell at the local flea market. Last month, Pam bought one of the chairs. Mary made no statement about the quality of the chair when Pam bought it. When Pam took him home and sat in it, the chair collapsed and she was injured. Pam, citing article 51-2-314, sues Mary for breach of warranty. Task: What is Mary`s counter-argument to Pam`s confidence in Article 51-2-314? ASSIGNMENT 2 Common Law: The common law provides that in cases of negligence, punitive damages may be admissible if the defendant`s actions demonstrate intentional or unjustified disregard for the safety or interests of others. Case Law: In Stewart v. Echo Gas, the defendant negligently installed a propane conversion system in the trunk of the plaintiff`s vehicle. The defendant allowed the plaintiff to pick up the vehicle even though he knew the vehicle was in a dangerous condition. In addition, the defendant had made more than fifty conversions without ever submitting the security checklist required by the state.
In awarding punitive damages, the court found that the defendant`s negligence in releasing the vehicle, knowing that it was dangerous, and the failure to file the safety checklist, constituted gratuitous and reckless driving. Facts: The defendant, a local energy company, installed a pole and power line on part of the plaintiff`s property. The mast was twisted, and over time it gradually tilted to the side and the power line collapsed. During a storm, the power line hit the applicant`s garage and set it on fire. The plaintiff is suing the defendant for negligence in the installation, maintenance and inspection of the station. The plaintiff seeks punitive damages, relying on Stewart v. Echo Gas. Task: Discuss the counter-argument to the applicant`s invocation of Stewart v. Echo Gas. A good application section weaves the cases into your facts. The wording of the cases should be prominent and integrated into your discussion of these facts. In the rule proof, you discuss the cases to support the rule statement.
In the scope, you can draw analogies or contrasts between existing cases and your facts to reach your conclusion. (NOTE: If you mention the attitude, reasoning, or facts of a case in the application, you must first introduce these aspects of the case into the rule evidence; do not use the application section to introduce a new case discussion.) The conclusion is a brief explanation of your position on the issue or topic being considered in a particular RAIC/CRRACC.
