UNIVERSITY OF THE CORDILLERAS
COLLEGE OF LAW
Legal English
PERSUASIVENESS
Persuasion is a process where people are guided towards the adoption of an idea
or course of action. In legal writing, a persuasive document attempts to influence
the deciding authority to favorably decide the case in favor of one’s client or one’s
position. The deciding authority may be the judge, arbiter, commissioner, hearing
officer, mediator, other party to the dispute, or your professor.
MODES OF LEGAL REASONING
Reasoning is the process of drawing conclusions from facts or evidence. To reach
the desired conclusion, arguments and proof may be used.
There are four (4) modes of legal reasoning: a) rule-based reasoning; b)
analogical reasoning (and the counter-analogical reasoning); c) policy-based
reasoning; and d) narrative reasoning.
A. RULE-BASED REASONING
In rule-based reasoning, the conclusion is reached by analyzing and applying the
law, rule, or legal principle.
The law says a contract is annullable where one of the parties is
incapable of giving consent to a contract. Mario was sixteen when
he signed the contract. Therefore, Mario should not be bound by
the contract because he signed it when he has a minor who is still
incapable of giving consent under the law.
B. ANALOGICAL REASONING
(AND, BY EXTENSION, THE COUNTER-ANALOGICAL REASONING)
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There are three (3) possible types of analogical argument:
1. Arguing from precedent
This type of analogical argument happens when the conclusion is reached by
showing similarities between the case decided by the Supreme Court and the
case of the client. This is usually achieved by invoking the doctrine of stare
decisis.
The lawyer reasons by showing that there is a direct factual similarity between
the case decided upon by the high court and his client’s case. If the Supreme
Court decided the case this way, then the client’s case must be decided this
way due to the similarities of facts. To put it conversely, my client’s case should
be decided in “this manner” because after all, the Supreme Court in a case of
similar facts also decided in “this manner”.
In the case in question, Mario was sixteen when he signed the
contract in 2009. However, he lied about his age by
misrepresenting himself to be twenty. In a case of similar facts,
Mercado v. Espiritu, the Supreme Court declared the deed of sale
valid and cannot be annulled although two of the four parties
were minors. Their misrepresentation about their age amounted
to estoppel. They cannot benefit from their bad faith.
2. Argument of same legal application
Analogical reasoning may also be used to show similarities that if the law
applies to one area, it may be understood to apply to other similar areas.
In a case that attempts to impose damages on the seller of real property for
failing to disclose a major defect of the property, the lawyer might argue that
the law has imposed such duty on sellers of personal property as well. He
might argue that the rule for real and personal properties is the same.
a. Mutatis Mutandis
Mutatis Mutandis is an example of argument using the same legal
application. This happens when one compares multiple situations having
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multiple variables where some variables remain constant, while others are
allowed to remain to be changed.
The injunction in the ten commandments “thou shall not covet thy
neighbor’s wife” will apply mutatis mutandis to “thy neighbor’s
husband” as well.
Article 111 of the Law of the Sea states that the right of hot
pursuit shall apply mutatis mutandis to violations in the exclusive
economic zone or on the continental shelf, including safety zones
around continental shelf installations, of the laws and regulations
of the coastal State applicable in accordance with this Convention
to the exclusive zone or the continental shelf, including such
safety zones.
3. Argument using common sense analogy
Analogical arguments may be used by starting with something that everyone
accepts.
A person might argue that death penalty must be restored
because the body of society is just like the body of a person. If a
man has severe toothache, the logical way is to extract the tooth.
A heinous criminal is just like the bad tooth.
COUNTER-ANALOGICAL REASONING
Counter-analogical reasoning is the opposite of analogical reasoning. While the
latter concludes by pointing out the similarities, counter-analogical reasoning
concludes by pointing out relevant differences between the case and the client’s
facts. Counter-analogical reasoning is usually used to debunk or destroy the other
party’s prior use of analogical reasoning by stating that the case cited and the
client’s situation are actually different. Thus, no common conclusion can be
inferred from both situations.
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In Mercado v. Espiritu, the minors’ representations misled the
other party because the minors had passed the age of puberty
and truly looked like adults. However, in the other case, the buyer
cannot be misled even if Mario, the seller, lied about his age
because Mario is a baby-faced sixteen year old. Further, Mario
has neither passed the age of puberty nor looked like an adult.
Thus, there are no factual similarities in both cases.
In the tooth extraction case as an analogy why death sentence
should be imposed, the opposing party who is against death
penalty might reason using counter analogy by saying satirically
that “if my tooth aches, I may have it pulled, such that if my head
aches, I may have it cut”. This is another way of telling that there
are not enough similarities between tooth extraction and death
penalty to warrant a conclusion.
C. POLICY-BASED REASONING
Policy-based reasoning reaches a conclusion by connecting the facts of the case
to the State’s existing policy, i.e., what would be “best” for the society at large.
Public policy is “recognized or established by the State in determining what acts
are unlawful as these are deemed injurious to the public good.”
Thus, an agreement is against public policy if it is injurious to the interests of the
public, contravenes some established interest of society, violates some public
statute, is against public morals, tends to interfere with the public welfare or safety,
is at war with the interests of society, and is in conflict with the morals of the time.
Mario should not be bound by the contract. Young people whose
minds and morals are not yet fully formed should not suffer from
the harmful consequences of those acts which they themselves
could not fully consent to. He is not yet mature enough to
consider the full consequences of his decisions. He deserves to
be protected, not punished.
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D. NARRATIVE REASONING
Narrative reasoning reaches a conclusion by telling a story that shows the context,
description, and perspective that appeals to commonly-held ideas of justice,
mercy, or fairness.
Mario should not be bound by the contract he signed because
Joey, the car-dealer for 25 years, pressured Mario, discouraged
him from calling his parents to ask for advice, and told him that
another buyer was interested at the car at the very moment.
Joey said that he will give Mario a bonus of P5,000.00 on top of
Mario’s selling price if Mario will allow Joey to facilitate the sale of
Mario’s car to the buyer. That bonus was a secret between Mario
and Joey. Clearly, there was undue influence on Mario and
consequently affected the consent he gave to Joey and the
buyer. #
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