It doesn’t matter what the context is – a court submission, an advice to a client, or a letter to a colleague – knowing how to build a convincing argument involves some fundamental features. I could summarise them as clarity, simplicity, and strong foundations, but it is perhaps more helpful to look at the process, rather than the end result. It is by following a basic but rigorous process that a strong argument can be constructed from and for almost anything.
Do not start with your conclusion, as it is tempting to do. That way leads to confusion and BS. Start with the facts. In legal terms this means starting with your papers – your evidence, and the statements of facts you have been told that you can/must assume. Put your documents in date order, for a start – that way you will understand what has happened. Label them or mark them up in a way that will allow you to find things again – that way you will know what the relevant events are, and be able to return to them to check things if you need to.
Now write a written summary of these known facts. This is a powerful way of making sure you know what is actually going on: if you can’t explain it to yourself in a simple list of relevant facts, then you do not understand the narrative and your argument will probably be fatally flawed in ways you cannot see.
Next, identify the question you want to answer. For us lawyers, that often means identifying the relevant law. Then dig deeper into that question, right to the bottom: what is the test for answering it? What does the law require to reach a conclusion? What sub questions are relevant? What aspects of the facts will be critical. Which are just influential? You must become an expert in the question, because if you do not understand any part of it properly, your argument will be BS. Again – write it down so that you know you know.
By setting out clearly the facts, relevant law and the legal test to be applied, you will build strong foundations. And the rule, when doing this, is simple but inviolable: do not write down anything you cannot demonstrate to be unequivocally true. There is no room for assumptions in the foundations of a strong argument. Each statement must be supported by concrete material, whether it be a document that you can point to, a statute that lays down the law, or a judgement that gives clear guidance. Be prepared to answer the question ’how do you know that?’, in relation to every statement, by pointing to material you have to hand.
Now you understand the question. You have set out what is not in doubt. Only now can you begin arguing.
The rule at this stage is simplicity. Join the dots. Do not add what is superfluous. Do not embellish. Your argument will flow from what you have already established. At this stage, the less words/time it takes to explain, the more convincing it will be. If you have done the first part right it will be easy.
You are nearly done. With your argument clearly set out and grounded in the facts, we have left just the fun of dealing with counter-arguments. Here again we must build good foundations. We must put the arguments against us as clearly and as well as we can. We must not invent arguments that are not put, or improve them (that WOULD be doing the work for our opponent), but we must give their actual arguments as clear an airing as we gave our own. We must lay out their foundations and their reasoning. Only then can we expose their weaknesses. Only then can we truly tear them down, by pointing out clearly the absence of a factual or legal basis, the lacunae in the reasoning, or the contradictions that their assumptions or conclusions (think about both) lead to. Do not shirk from this. The better we set out the other side’s case the better we will be able to control them in the mind of our reader: if we can explain them better than the other side, we will not only win the confidence of our audience, but we will also control the narrative and dictate how the person we are seeking to convince should think about our opponent’s case.
Case closed. You might need a summary, you might not – that depends on how long and complicated things have got. But by laying down strong foundations and extrapolating from them clearly and directly, any conclusions you do now sum up will be simple, clear, and as confident as they can be.
Practical tip: I write my arguments in Word. But I build my foundations in Casedo. Nothing else will allow you to marshal the evidence and law on which your argument rests as effortlessly or successfully. Frankly, I built it for this very purpose, and it is very good at it.
These legal workflows can be tricky with the mass of documents, law and emails legal professionals receive in relation to any single matter, case or brief. We take a look at this issue in Common Problems with Legal Workflows.