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Persuasión y argumentación

“Engineers convince; marketers persuade and Lawyers both persuade and
convince”
Aristotle wrote that the writer' s character ("ethos") was one of the three
methods of persuasion. The other two are reason ("logos") and emotion
("pathos").
"What really interests me is whether God had
any choice in the creation of the world.“ (Einstein)

Persuadir y convencer
FACTS are just FACTS. STORIES change our THINKING and our FRAMEWORK

.

you are persuaded by appeals to the irrational—
emotions, psychology, and imagination. Understanding
something (e.g., what smoking does to the human
body) largely comes from facts or arguments that
appeal to intellect. When I get you to do something
based on facts and reason I’m convincing you to act.
Legal writing differs from other sorts of writing in that
it is singularly directed toward persuading (and
convincing) the reader

¿Para qué razonamos?
• Razonamos para convencer en la
comunicación
• Se explican así los sesgos
• http://derechomercantilespana.blogspot.com.
es/2013/08/para-que-razonamos.html

Carga de la prueba y carga de la
argumentación
• Se va mejor de demandado
• Se va mejor con los “principios generales” del
lado propio
• Se va mejor con los argumentos formales del
lado propio
• Se va mejor con precedentes del lado propio
• Se va mejor con la equidad del lado propio
• Se va mejor con la honradez del lado propio

• ARGUMENT IS WAR and metaphors help to persuade the judge
Your claims are indefensible.
He attacked every weak point in my argument.
His criticisms were right on target.
I demolished his argument.
I’ve never won an argument with him.
You disagree? Okay, shoot!
If you use that strategy, he’ll wipe you out.
He shot down all of my arguments.

• metaphor helps communicate, using a simple model to describe
one idea can help us grasp the complexities of a similar idea. In
both cases we are using one concept (the source) to better
understand another (the target). Used this way, metaphors not only
express existing ideas, they stimulate new ones
• Avoid meaningless language.
• Would a non-lawyer understand this?"

Los hechos
1. What facts are you trying to emphasize? Emphasize those facts which advance your argument
2. What facts are you trying to downplay?
3. What emotions are you trying to elicit in the reader?
4. Avoid trivial, unrealistic and unbelievable claims.
5. Select an organizational form which best compliments your argument on appeal.
6. Once you have chosen a perspective from which to tell your story, try not to flip back and forth
7. Use graphic language to support your case.
8. Use dull, conclusory language when describing facts you want to minimize
9. Evita los detalles irrelevantes, especialmente, fechas (molestan mucho: establish the
chronology of events without using dates)
10. Use facts to create the mood in which your brief will be read (el cártel que nunca existió).
11.When you discuss legal principles, be sure that you quickly follow up by explaining what about
the facts of your case makes those principles relevant.
12. Do not just cite case law for general legal principles. Find, cite and discuss precedents which
are factually analogous to your case.

In most cases, there is little debate over the law. The real issue is
whether the facts of your case fit within the relevant legal boundaries.

Justice Ruth Bader Ginsburg of the U.S. Supreme
Court: “As between [factum] and argument, there
is a near-universal agreement among federal
appellate judges that the [factum] is more
important – certainly it is more enduring. Oral
argument is fleeing – here today, it may be
forgotten tomorrow, after the court has heard
perhaps six or seven subsequent arguments.”
El caso del franchising

• “Tres generaciones de idiotas es suficiente”
• My poetry is better than my law
• Para el juez de 1ª instancia o para el del Supremo:
CNC, AN, TS
• “prueba del nueve”
• Frame o marco del que decide: Responsabilidad
de la matriz Dº competencia
• Formalismo del bueno
• No te defiendas si no te atacan: centrar la
discrepancia

Strategic Legal Writing: Preparing Persuasive
Documents
By Eugene Meehan, Q.C.* Chair, Supreme Court
of Canada Practice Group Lang Michener LLP,
Ottawa

Reader-friendly writing:
Legibility (easy reading) is fundamental to readability (easy
understanding).








don’t rely entirely on standard prosey block paragraphs. Look for alternative methods of
formatting (e.g., bullets) that make it visually easier for the reader;
use sensible paragraphing and numbering. Don’t go further than a third level of breakdown
(e.g., 1(a)(i)). If you feel the need to go beyond that then chances are you’ve overused
headings (you aren’t drafting legislation after all).
Avoid roman numerals — they look too much like a foreign language;
if the items listed have no rank ordering, then bullets are preferable to numbered lists;
never use a font smaller than 10 or larger than 12 for the main body of the text;
avoid lines that are entirely capitalized — their uniform size makes them difficult to read;
avoid underlining — it’s a throwback to the days of typewriters. Use italics or boldface to add
emphasis;
there is evidence that justified right margins make text harder to read, so it may be best to
use ragged right margins for factums;
align headings to the left in a larger, bolded font. Use a smaller bolded font for subheadings;
readers like “white space”, and makes the rest more easily absorbed
Pictures, charts, diagrams, parallelisms can really help
No queremos que el Juez aprenda, por tanto, hay que maximizar la legibilidad

Cómo escribir
“Reading is not a duty, and has
consequently no business to be made disagreeable.”











Los eventos consuetudinarios que acontecen en la rua vs. Lo que pasa en la calle
El cansancio de los jueces y la libertad provisional (alargarse)
Legalese, abreviaturas y definiciones y referencias internas están bien para los
contratos (y no siempre), no para los escritos procesales (los jueces son capaces
de distinguir legalese de plain english y consideran más convincente los 2º)
Conecta las partes del escrito entre sí
No repitas, pero tampoco escondas los argumentos
Haz el escrito autosuficiente (no fuentes externas)
avoid “false intensifiers
Cuenta una historia pero don’t write it like a mystery novel
Si generas en el Juez una pregunta, contéstala inmediatamente
No-one has ever been convinced by an argument they didn’t understand
If you’re passionate about what you write, about what you say, other people will
be too
make your section headings and subheadings full, informative sentences.

kozinsky
I can understand why lawyers may resist simple
writing: It' s much harder to do than
convoluted, abstract writing. Often, the
attempt to simplify and clarify reveals
weaknesses in your own argument,
weaknesses that have to be addressed and
shored up. Simple, direct language is more
persuasive is more easily grasped. Abstract
language has a tendency to be soft and
ambiguous

6 habits of effective advocates: one
judge’s perspective Justice Laskin
1. Begin Well – The overview paragraph should tell the court in a nutshell what the
case is about. The goal at this point is to turn the judge into a smart reader of the
rest of your factum. “The first page rule”. The first page should say it all. Your
opening paragraph — by definition you’ve only one chance to make a good first
impression. Escríbelo cuando tengas el borrador de todo el documento
2. Point First – Always start with the point you are trying to make – not the details of
your argument. Readers and listeners remember and absorb information better
when they first know why it matters and how it is relevant.
3. Know Role of Court of Appeal/Supreme Court
4. Anticipate the Court’s Concerns
5. Be Reasonable – Don’t overstate your case because nothing will destroy your
credibility more than overstating your position. In fact, there is something
disarmingly effective about an appropriate concession.
6. Polish Your Argument – Find the time to edit and rewrite your factum – clear
thinking is the product of a lot of tinkering. Lawyers spend much of their time
thinking about what to say and how they should say it. Relatively little time is
spent considering how best to organize the material on the page.

• it’s always better to present your own position first
with contrary positions cast as responses to your own
Generally, drafting in this way tends to make the opposing
position seem more suspect since readers tend to be
critical of the adequacy of any response.

• Don’t quote or summarize your opponent’s argument.
• If you’re the appellant, don’t quote lower court
(formula tú el argumento)
• Formula tu argumento en un slogan: “Si X no consintió,
no pudo existir un contrato”: if you can’t get your
points on the back of an envelope then you probably
haven’t thought about it long enough

Frame del Juez









Conoce al que va a decidir: precedentes: RDGRN – Concurso SL con un solo acreedor
Decide al que vas a dirigirte: JM – AP (telefonica)
Si el precedente no te conviene, distingue: SAP pactos parasociales
Argumentos específicos preferibles sobre generales: buena fe, Constitución
Procura tener los principios generales de tu lado: pero no insistas sobre ellos: libertad contractual;
ultima ratio; contra proferentem; signing is binding; pacta sunt servanda; nemo dat;
Centrar el tiro: v., las sentencias del TS: “los jueces nos engañan y resuelven solo sobre lo q les da la
gana” Only one thing matters to the judge: “what’s the question I’m supposed to answer?”
¿Cuántos recursos se ganan alegando infracciones procesales? Diría q en civil pocos y en
penal/cont-adm sancionador muchos
Si tu alegación es de “cortaypega”, tendrás una sentencia de “cortaypega”
Limit the issues – Abide by the Rule of Three
Foot in the Door
Priming

Like other rhetoricians, lawyers address their statements to
particular audiences, and they shape their arguments in light
of the characteristics of those audiences. In addressing
skeptical audiences, lawyers will find that narratives
structured as stories tend to be more persuasive than more
syllogistic forms of verbal reasoning. In contrast to the
straightforward lines of logical reasoning in syllogisms,
narratives persuade by providing vicarious experiences for
their audiences.
Ching, Bruce, Argument, Analogy, and Audience: Using Persuasive Comparisons While Avoiding
Unintended Effects (Fall 2010). Journal of the Association of Legal Writing Directors, Vol. 7,
2010. Available at SSRN: http://ssrn.com/abstract=1650176




Adverse authority: put it in and deal with it
Don’t overstate your position
No insultes al contrario ni lo ridiculices (“overkilling”)
Let go of the little stuff (salvo que se aplique lo de “know
your decision-maker”)
• Be selective in what you cite No reproduzcas sentencias at
large. Una frase o máximo un párrafo de la sentencia es
suficiente y tras la sentencia, extrae la doctrina q esa
sentencia recoge. Los malos jueces lo hacen

• above all, tell the truth

“when you have eliminated the impossible, whatever remains,
however improbable, must be the truth”
Sherlock Holmes in The Sign of the Four, ch. 6, 1890)

The case was a civil dispute about the cause of a fire, and concerned an appeal against a decision in the High Court by Judge
Edwards-Stuart. Edwards-Stuart had essentially concluded that the fire had been started by a discarded cigarette, even
though this seemed an unlikely event in itself, because the other two explanations were even more implausible. The Court
of Appeal rejected this approach although still supported the overall judgement and disallowed the appeal - commentaries
on this case have appeared here and here.
Sometimes the "balance of probability" standard is expressed mathematically as "50 + % probability", but this can
carry with it a danger of pseudo-mathematics, as the argument in this case demonstrated. When judging whether a
case for believing that an event was caused in a particular way is stronger that the case for not so believing, the
process is not scientific (although it may obviously include evaluation of scientific evidence) and to express the
probability of some event having happened in percentage terms is illusory.

The idea that you can assign probabilities to events that have already occurred, but where we are ignorant of the result,
forms the basis for the Bayesian view of probability. Put very broadly, the 'classical' view of probability is in terms of genuine
unpredictability about future events, popularly known as 'chance' or 'aleatory uncertainty'. The Bayesian interpretation
allows probability also to be used to express our uncertainty due to our ignorance, known as 'epistemic uncertainty', and
popularly expressed as betting odds.).
The judges went on to say:
The chances of something happening in the future may be expressed in terms of percentage. Epidemiological evidence
may enable doctors to say that on average smokers increase their risk of lung cancer by X%. But you cannot properly
say that there is a 25 per cent chance that something has happened: Hotson v East Berkshire Health Authority [1987]
AC 750. Either it has or it has not.

http://understandinguncertainty.org/court-appeal-bans-bayesian-probability-and-sherlock-holmes

Prueba civil/penal y probabilidad
estadistica
So while probabilistic thinking is indispensable when dealing with recurrent events
or histories that repeat themselves, it often fails when we try to apply it to
idiosyncratic events and open-ended problems. We cope with these situations by
telling stories, and we base decisions on their persuasiveness. Not because we are
stupid, but because experience has told us it is the best way to cope. That is why
novels sell better than statistics texts.
One famous illustration supposes you are knocked down by a bus, which you did
not see (that is why it knocked you down). Say Company A operates more than half
the buses in the town. Absent other evidence, the probability that your injuries
were caused by a bus belonging to Company A is more than one half. But no court
would determine that Company A was liable on that basis. A court approaches the
issue in a different way. You must tell a story about yourself and the bus. Legal
reasoning uses a narrative rather than a probabilistic approach, and when the
courts are faced with probabilistic reasoning the result is often a damaging muddle
– as, for example, the flawed testimony of Sir Roy Meadow on child deaths that led
courts to wrongfully convict grieving parents of murdering their children.
John Kay
http://www.johnkay.com/2013/02/27/a-story-can-be-more-useful-than-maths?

La sustancia: convencer de que el
Derecho está de nuestro lado
• Teoría de la argumentación, Alexy

• http://www.evanschaeffer.com/five-stepstowards-persuasive-writing.html
• PERSUASIVE LEGAL WRITING By Daniel U.
Smith
• http://lawprofessors.typepad.com/legalwritin
g/