San Jose, Clarice Joy D.J.

2013-0051 June 30, 2013

Atty. Mary Jude Cantorias Legal Writing SUN 10:00-12:00nn Set A

Legal Argument and Small-Scale Organization: Summary and Reaction Paper The article Legal Argument and Small-Scale Organization authored by Scott Fruehwald discusses the importance of understanding the relationship of the types of legal arguments and legal writing, and offers a paradigm that can be used to strengthen a legal argument. Legal writing and legal argument always come together. Legal writing is not just a translation of a legal analysis, but the analysis itself. There are four major types of legal argument: (1) rule-based reasoning, used when the writer takes a rule and applies it to a set of facts; (2) reasoning by analogy, occurs when one argues that the facts of the precedent case are like the facts of the present case so that the rule of the precedent case should apply to the present case; (3) distinguishing precedent, occurs when one argues that the facts of the precedent case are not like the facts of the present case so that the rule from the precedent case does not apply to the present case; and (4) policybased reasoning, occurs when the writer argues that applying a particular rule to a case would create a precedent that is good for society. All the four types are important for a convincing legal analysis. However, of the four, rule-based reasoning is the most important and the one that should constitute the framework for a legal analysis. Reasoning by analogy, which involves a question of degree, should support rule-based or policy-based reasoning rather than being the principal type of argument employed. The author suggests that legal analysis is much more convincing if one synthesizes the rule or the policy, applies it to the set of facts then backs this up with case comparisons. Another way to incorporate the types of legal argument in legal writing is to develop a small-scale organizational paradigm. A small-scale organizational paradigm, the author proposes, is the basic unit of organization for argument and discussion sections. When the argument section of a legal writing cannot be further broken down from large- and medium- scale levels, the small-scale paradigm should be used. The article explains that a small-scale paradigm provides a true synthesis of the law using a rule-based reasoning. First, it begins with a one-sentence conclusion to let readers know at the beginning what the conclusion of the argument is. This is followed by a clear statement of the rule, and a synthesis of such from all the relevant cases and other legal materials. Since the meaning of the rule will usually not be clear from just stating it, the synthesis must contain an explanation of the rule so as to discuss also the policy behind it. To show how the rule works in a factual context, the rule must be illustrated in one or more cases. In this section, cases are being set for comparison through reasoning by analogy and distinguishing cases. After having fully presented the

law, the writer should apply the law to the facts in detail. The writing should show how the facts fit into the presented law. Finally, policy can be placed in the rule explanation and illustrations, and then applied in the application and comparison sections of the writing. As a first year law student, I find the article an interesting read. It creates in my mind a bigger picture of what real lawyering is like, as well as the fundamental competencies one should have in the legal practice. Studying the case and finding the law is an important duty of the lawyer, but the ability to formulate argument based on the facts is just as essential. Furthermore, proper and effective communication of the analysis through legal writing is a powerful means with which a lawyer can strengthen arguments and be more persuasive. By knowing the tools and how to use them, articles like this will be of help and guidance in my training to be an effective communicator of legal analysis through a comprehensible and coherent style of legal writing.