Effective Arguments

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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?
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