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TECHNIQUES OF CLIENT

COMMUNICATION

AUTHOR:
Dr.SUMITRASINGH

CO-AUTHOR: EDITED BY
Akhand Pratap Singh Capt. H.A. Arfi, IAS (Retd)

I am happy to see the book titled Techniques of Client Communication authored by


Dr. Sumitra Singh, Assistant Professor, Amity University, NOIDA and Mr. Akhand
Pratap Singh, Advocate.

This book is highly detailed and is commensurate with the syllabus of both five years
and three years LLB Programme, (Second Semester) in various Universities in India.

With the growing inter-disciplines, it has become utterly difficult to find out a brief,
handy study material to study for a specific semester. In this context, I hope, wish and
pray that Techniques of Client Communication would prove to be of immense
importance to the students. No wonder, it is the hard work and efforts put forth by
Sumitra and Akhand that has brought forward this book. It fills me with great joy and
satisfaction to put on record that both of them have done a fair justice to the syllabus
and for the cause of the students and have once again proved their mettle.

Good Luck! Wish you all the best!

Mrs. Megha Pandey


Advocate on Roll at Lucknow Bench of Allahabad High Court,
State Law Officer, Uttar Pradesh

We dedicate this book titled Techniques of Client Communication to Dr. Ashok K. Chauhan, Founder
President, Ritnand Balved Education Foundation (RBEF) and The Foundation of Amity Institutions
and the Sponsoring Body of Amity Universities

Thank you so much Sir for your continuous motivation, inspiration and helpful words of cheer , which has
kept us focused and targeted towards our goal.

Dr. Sumitra Singh, Assistant Professor, Amity University, NOIDA


Akhand Pratap Singh, Advocate, Allahabad High Court & Delhi High Court

GENERAL COMMUNICATION
COMMUNICATION

Communication (from Latin commnicre, meaning "to share") is the activity of conveying
information through the exchange of thoughts, messages, or information, as by speech,
visuals, signals, written, or behavior. It is the meaningful exchange of information
between two or more living creatures.

One definition of communication is any act by which one person gives to or receives from
another person information about that person's needs, desires, perceptions, knowledge, or
affective states. Communication may be intentional or unintentional, may involve
conventional or unconventional signals, may take linguistic or non-linguistic forms, and
may occur through spoken or other modes.

Communication serves as a foundation for planning and organizing, promoting motivation,


altering individual's attitudes and in socialisation. It can be verbal or written such as
emails, formal letters or memos. It is the basic method through which humans interact.

The importance of communication can be adjudged as following:


1. It is necessary for planning various activities.
2. It forms the basis of coordination amongst the members of an organization. Basis of
co-ordination.

3. It helps in the establishment of effective leadership.


4. It increases managerial efficiency by employee motivation.
5. It promotes Co-operation and industrial peace.
6. It forms the basis of Decision-making.
7. It helps in morale building and Motivation
8. It ensures smooth Working of Enterprise.
9. It ensures Job satisfaction by removing misunderstandings between people.

PROCESS OF COMMUNICATION

These are the important elements


of the communication process:

1. Sender/Encoder: The sender


also known as the encoder
decides on the message to

be sent, the best/most effective way that it can be sent. The sender may want to
ask him/herself questions like: What words will I use? Do I need signs or pictures?

2. Medium: The medium is the immediate form which a message takes. For example,
a message may be communicated in the form of a letter, in the form of an email or
face to face in the form of a speech.

3. Channel: The channel is that which is responsible for the delivery of the chosen
message form. For example post office, internet, radio.

4. Receiver: The receiver or the decoder is responsible for extracting/decoding


meaning from the message. The receiver is also responsible for providing feedback
to the sender. In a word, it is his/her job to INTERPRET.

5. Feedback: This is important as it determines whether or not the decoder grasped


the intended meaning and whether communication was successful.

6. Context: Communication does not take place in a vacuum. The context of any
communication act is the environment surrounding it. This includes, among other
things, place, time, event, and attitudes of sender and receiver.

7. Noise (also called interference): This is any factor that inhibits the conveyance of a
message. That is, anything that gets in the way of the message being accurately
received, interpreted and responded to. Noise may be internal or external. A
student worrying about an incomplete assignment may not be attentive in class
(internal noise) or the sounds of heavy rain on a galvanized roof may inhibit the
reading of a storybook to second graders (external noise).

The communication process is dynamic, continuous, irreversible, and contextual. It is not


possible to participate in any element of the process without acknowledging the existence
and functioning of the other elements.

Sender and Receiver

"In the basic interpersonal communication model, the sender, also known as the source, is
the person who initiates the communication process. In a dyadic, or two-person,
communication situation, the receiver is the other person involved. In a public speaking or
public communication situation, the audience is made up of receivers. The numbers can
vary from a few to a few hundred. The speaker may use only his/her voice or may need a

public address system. In mass communication, there could be literally hundreds, millions,
or even billions of receivers.

"In dyadic communication or public speaking, the channel, or a means of sending or


receiving information, is both verbal communication (the spoken word) and nonverbal
communication (gestures and one's appearance)."

(W. A. Kelly Huff, Public Speaking: A Concise Overview for the Twenty-First Century.
Peter Lang, 2008).

Sender Receiver

Message
Channels
Medium

Encodes Sender
Decodes Receiver

Communication is also a process of encoding and decoding. It is derived from the word
communicate, which means to convey information through the exchange of thoughts and
messages by speech, visuals, signals, writing or behavior. Therefore, it is the meaningful
exchange of information between two or more living creatures.

Other Definitions of Communication:


1. Communication is defined as any act by which, one person gives to or receives from
person information about that persons needs, desires, perceptions knowledge or
affective states.
2. It is a two-way process of reaching mutual understanding in which participants not
only exchange information, news, ideas and feelings but also create and share the
meaning of communication.
3. According to G.G. brown, it is transfer of information from one person to another
whether or not it elicits (bring out) confidence. But the information transferred
must be understandable to the receiver.
4. According to Fred and Meyer, it is the interaction by words, letters or messages.
5. Lehmann says, it is the operation, which produces social systems. It is a specific
operation, which brings new communicative possibilities to change the system or
the society.

6. According to John, it is abstract and like all words, it possesses multiple meanings.
Scholars have made many attempts to define communication but seeking a single
working definition may not be as fruitful as probing the various concepts behind
the term.
7. Accordingly to Morknsen, it occurs whenever people use the power of spoken or
written words to influence others. He argues whether the machine communicates
or not.
8. According to some people, every communication may have an assisted
communication theory to describe and explain behaviours that are communicative,
regardless whether the behavior results in successful outcome.
9. Mortensen says, it occurs whenever persons attribute significance to message
related behavior.
10. According to Whyte, it can be compared to time and time can be compared to a
line running through each succeeding hour of the Indis past life. Communication is
irreversible and it seems to proceed again at times own unchanged pace.

According to Lehmann, Essential Components of Communication

Message Information Understanding


(Selection) (Selection) (Selection)

Alter Speech/writing Ego

The person, who Imparted information/ the person, who


Tries to impart understood information receives the
The information information

According to Lehmann, it consists of three components message, information and


understanding information. He says that in a social dimension, these components are
described to at least abstract forms of persons. Here the person A, who understands, is
called the ego and the person, who imparts, is called alter. Further, the imparted
information may not be identical to the understood information.

Common Forms of Probabilities in it:


1. Language and understanding is the basic tool in which, the message or information
has to be conveyed. Understanding comes with the knowledge of the language
concerned and therefore, the success to communicate information about
something understandable and reasonable to someone is attributed to language.

2. Achievement: This means success to release the communication from its terms of
speech, its interaction between the speaker and listener and also from its
attachment to memory.

Forms of Communication:
1. Language: It is a tool to convey.
2. Dispersal Media: E-mail, radio, TV talks, print media.
3. Symbolically generalized communication medium: This includes abstract forms
like truth, belief or art, ethics and values, love and hatred.

Common Ideologies and Postulates for Communication:


1. It is dynamic and not static. Universal truths are static rest is dynamic.
2. Communication is irreversible
3. It is pro-active. We can simply understand a simple gesture.
4. It is highly interactive.
5. It is contextual
6. It is grounded in perspective depends upon the perspective of both the speaker
and the listener.
7. Communication is not just transfer of information, it is more of giving the
feedback.
8. It is a two-way process and a very effective one.

Conceptual Components of Communication:


1. Verbal/symbols
2. Understanding
3. Interaction
4. Reduction o uncertainty
5. Process
6. Transmission of ideas
7. Commonality
8. Liking and binding
9. Stimulus
10. Time and situation
11. Power and authority
12. Discriminating response of behavior

Directions of Communication:

It determines the flow of communication.


1. Upward flow of communication
2. Downward flow of communication
3. Unilateral flow of communication towards right
4. Unilateral flow of communication towards left
5. Continuous flow of communication
I. Individual Group
II. Individual Individual
I. Individual Group eg. Lecture, symposium
II. Individual Individual eg. Small talk between friends and colleagues.

Appropriateness of Flow of Communication:

Behaviour skills Inter-personal

Communication skills Intra-personal

Subconscious
Mind P
Id A Given by Freud
Ego C
Superego

1. There is a parent, a child and an adult consciousness in every individual


irrespective of time and age. What matters is which aspect dominates the other
one. This id is based on pleasure principle, ego on reality while superego is based
on analytical function of human mind. E.g. Pleasure playing, reality education,
analytical problem solving and decision making.
2. It is a combined attribution of both behvioural and communication skill that leads
to understanding of information.

Channels of Communication:

Communication channels are the means through which people in an organization


communicate. Thought must be given to what channels are used to complete various
tasks, because using an inappropriate channel for a task or interaction can lead to
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negative consequences. Complex messages require richer channels of communication that


facilitate interaction to ensure clarity.

The principal communication channels are nonverbal, oral, and written. Electronic
channelsincluding the telephone, radio, television, electronic mail, and electronic
conferencingemploy one or more of the principal channels using technology to augment
the channel. Each of these channels has certain characteristics that can either help or
hinder communication, depending on the circumstances, the message, and the sender and
audience.

Face-to-Face

Face-to-face or personal communication is one of the richest channels of communication


that can be used within an organization. Physical presence, the tone of the speaker's voice
and facial expressions help recipients of a message interpret that message as the speaker
intends. This is the best channel to use for complex or emotionally charged messages,
because it allows for interaction between speaker and recipients to clarify ambiguity. A
speaker can evaluate whether an audience has received his message as intended and ask
or answer follow-up questions.
This would include both Verbal and Non verbal components of
Communication. The verbal message is always accompanied by a nonverbal
message that reinforces, complements, or contradicts the verbal message.

Nonverbal communication typically communicates attitudes, feelings, status, and other


affective (emotional) messages. It is often used to indicate relationships, both among
elements in the external environment and between and among people
Among the most important nonverbal components in organizational
communication are the following:
Space
o Between people (proxemics)
o Allocated to people (territory)
Time
o Amount (duration and frequency)
o Kind (exclusive or shared)
o Wait (who waits for whom and how long)
Kinesics
o Open postures and signals (inviting communication)
o Closed postures and signals (discouraging communication)
Appearance
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o Conforming (matches others in dress and appearance)


o Nonconforming (mismatches others in dress and appearance)

One of the principal causes of difficulty in cross-cultural communication, for example, is


differences in nonverbal communication. Even when people learn each others languages,
patterns of nonverbal behavior typically operate below a persons level of conscious
awareness, so differences in body language, patterns of eye contact, and meanings
associated with gestures may all cause misunderstandings.

The advantages of oral communication are based on its immediacy. In face-to-face


situations (dyads and small groups), people have the opportunity to discuss an issue,
receive immediate feedback on their comments, and change their views or messages
accordingly. They also have a good opportunity to evaluate the nonverbal message that
accompanies the verbal and to use that information to judge the credibility of the verbal
message.

The disadvantages of oral communication are that it is relatively inefficient and that oral
messages are more difficult to store and retrieve than those in writing. Compared with
writing, oral communication typically takes more time to communicate an idea, as
speakers are imprecise in the way they say things, and listeners need to ask questions to
clarify meaning. Also, because most people have a poor memory for what they have
heard, the content of most conversations is lost soon after the conversation ends. People
tend to hear what they want to hear, so it is also easier to distort information received
orally than that which is in writing.

Broadcast Media

TV, radio and loud speakers all fall within the broadcast media communication channel.
These types of media should be used when addressing a mass audience. Businesses seeking
to notify customers of a new product may advertise or do promotions using a broadcast
channel. Similarly, a CEO may do a global company address by having a television feed
broadcast across global sites. When a message intended for a mass audience can be
enhanced by being presented in a visual or auditory format, a broadcast channel should be
used.

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Radio

Although its business uses are limited, radio is an effective means of broadcasting
information to many people at once. For this reason, radio is a form of mass
communication. The mass media also include newspapers, popular magazines, and
television. Radio and other forms of mass communication do not allow for convenient,
prompt feedback. Receivers who wish to provide feedback on a particular message
typically need to use some other communication channeltelephone, email, or letterto
respond to a sender. The most common business use of radio is for advertising, primarily
at the local level.

The advantages of radio are that it is a relatively inexpensive medium for both sender and
receiver, and vocal qualities can be used to help clarify the meaning of messages. Radio
messages may be prerecorded for a later broadcast, and receivers may record messages to
listen to them at a more convenient time or for repeated play. The disadvantages are the
absence of a convenient means of feedback and the use of radio to provide background
entertainment, which leads receivers to pay less attention to information delivered by
radio than to that delivered by other means.

Television

Television, another of the mass media, is also an effective means of broadcasting


information to many people at once. In addition to using commercial television for
advertising, business has been making increasing use of TV for education and training
programs and videoconferencing. Because it combines auditory and visual images, TV
provides a fairly effective substitute for face-to-face communication when time, distance,
or cost of travel would make face-to-face communication difficult.

The advantages of televisionvideoare that it combines both audio and visual


information in a way that approximates face-to-face communication. Receivers can see
facial expressions and other nonverbal signals as well as hear tone of voice, rate of
speech, and other paralinguistic elements that contribute to the interpretation of the
verbal message. Messages may be prerecorded and checked to ensure that they
communicate the intended message before delivery at a later time. They can also be
recorded by the receivers for viewing at a convenient time or viewing repeatedly to
ensure that the message has been understood.

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The principal disadvantage of television is that it is expensive, especially when it is done


well. Videoconferencing rooms, which serve to send and receive video images of meetings,
are sufficiently expensive that typically only large organizations have them. Organizations
that have installed videoconferencing rooms use them to avoid the costs of travel. In
recent years, the cost of such equipment has been coming down, and inexpensive desktop-
to-desktop video designed for use with computers connected to the Internet have become
available.

Recording and broadcasting equipment are expensive. Recording, duplicating, and


distributing videotapes (or DVD disks) is also expensive, so the message needs to be
important to the organization and to those whom it wishes to reach. Training videos, for
example, are produced to show members of an organization how to perform a specific
task. Once produced, they can be shown to hundreds and perhaps thousands of people,
which keeps the cost per view at an acceptable level.

Television is also difficult to do well. Broadcast quality video requires good cameras,
trained operators, and usually a trained producer. Those who will be on camera require
sufficient training to be comfortable speaking to the camera lens, which has been called
the eye that never blinks.

Mobile

A mobile communication channel should be used when a private or more complex message
needs to be relayed to an individual or small group. A mobile channel allows for an
interactive exchange and gives the recipient the added benefit of interpreting the
speaker's tone along with the message. Some within an organization may opt to use this
channel versus a face-to-face channel to save on the time and effort it would take to
coordinate a face-to-face meeting.

The telephone was the first electronic channel to gain wide acceptance for business use.
Telephones are everywhereat least in the industrialized world. Most people raised in
industrialized countries are familiar with the telephone and feel comfortable sending and
receiving calls. Because they are so ubiquitous, people in industrialized countries have a
difficult time comprehending that more than half the worlds population has never placed
a telephone call.

The telephone offers many advantages. It is often the fastest, most convenient means of
communicating with someone. The telephone is also economical in comparison with the
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cost of writing and sending a letter or the travel involved in face-to-face meetings.
Although standard telephone equipment limits sender and receiver to exchanging vocal
information, tone of voice, rate of speech, and other vocal qualities help sender and
receiver understand each others messages.

Modern telephone services expand the utility of the telephone through answering
machines and voice mail, telephone conferencing, portable phones, pagers, and other
devices designed to extend the speed and reach of the telephone as a communication
device.

The telephone does have disadvantages. The most common complaint about the
telephone is telephone tag. Telephone tag is time consuming, expensive.

Telephones can also be intrusive. Senders place calls when it is convenient for them to do
so, but the time may not be especially convenient for the receiver. This is especially true
when the person placing the call and the one receiving it are in different time zones,
perhaps even on different continents. Another disadvantage of the telephone is that they
are so common that people assume that everyone is skilled in their use, when this is
actually far from the case. Most people have had little or no training in effective
telephone skills and are poorly prepared to discuss issues or leave effective voice mail
messages when the person with whom they wish to speak is not available.

Electronic

Electronic communication channels encompass email, Internet, intranet and social media
platforms. This channel can be used for one-on-one, group or mass communication. It is a
less personal method of communication but more efficient. When using this channel, care
must be taken to craft messages with clarity and to avoid the use of sarcasm and innuendo
unless the message specifically calls for it. Electronic channels usually have the same basic
characteristics as the other channels, but electronic media exert their own influence. The
most obvious of these are speed and reach. Electronic channels cover more distance more
quickly than is possible with traditional means of conveying information. The speed and
reach of electronic channels create new expectations for both sender and receiver, and
while the fundamental characteristics of oral and written communication remain, the
perceptions of electronic messages are different from those of their traditional
equivalents.

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The advent of electronic communication channels created an awareness of whether


communication was synchronous or asynchronous. Synchronous communication requires
both the sender and the receiver to be available at the same time. Face-to-face meetings,
telephone conversations, live radio and television (most talk shows, sporting events, and
anything else not prerecorded), videoconferencing, and electronic chat rooms are all
examples of synchronous communication. Letters and other printed documents, electronic
mail, electronic conferences, voice mail, and prerecorded video are all examples of
asynchronous communication.

The advantages of synchronous communication are based on the immediacy of feedback.


Because both sender and receiver are present at the same time (even if their locations are
different), the receiver usually has the opportunity to comment on a message while it is
being sent. The exceptions are, of course, with one-way media, such as radio and TV. The
principal disadvantage of synchronous communication is the need to have sender and
receiver present at the same time.

The advantages of asynchronous communication are that messages can be sent and
received when convenient for sender and receiver. Also, because asynchronous
communication requires a methodology for storing and forwarding messages, it
automatically provides a relatively permanent record of the communication. The principal
disadvantage of asynchronous communication is that feedback is delayed and may be
difficult to obtain.

Electronic Mail

Email has recently become the most common form of business communication,
substituting for letters, memos, and many telephone calls. It is quick, convenient, and
once the appropriate hardware and software are installedinexpensive. Most organizations
in the industrialized world now have email and access to the Internet, a world-wide
network connecting most of the worlds major computer networks. Although email permits
most of the advantages of other forms of written communication, email users tend to
prepare email messages quickly and with less attention to detail, including grammatical
and mechanical correctness, than they do when preparing paper documents.

The advantages of email are that it is both quick and convenient. It can be printed, saved
electronically, or forwarded to multiple recipients. Email listswhether maintained by an
individual or by special software designed for the purpose (such as listserv, listproc, and

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majordomo)simplify the process of exchanging information with groups of people who


share common interests.

The disadvantages of email are that because speed often seems more important than
correctness, email messages often contain egregious errors in spelling, grammar,
mechanics and content. Messages containing such errors may be saved or forwarded
and/or printed, duplicated, and sent to a number of people. If such a message were sent
to a large mailing list, hundreds or perhaps thousands of people would see it and form an
opinion about the person who sent it.

Electronic Conferencing

Although mailing lists enable large numbers of people to participate in discussions about
issues of common interest, they are not well-suited to organizing that information in a
logical way. Messages are sent and received in chronological order rather than by topic.
Also, even though mailing lists store or archive messages, retrieving information about a
particular topic from the archives may not be easy. Electronic conferences eliminate those
problems by categorizing subjects by topics or threads. Access to such conferences can
also be easily restricted to qualified individuals, making them useful for discussions of
proprietary matters.

Individuals who belong to an electronic discussion group can read about and respond to
the subjects of most interest to them and skip those in which they have no interest.
Someone who joins an existing electronic conference can review everything that has been
said about a particular subject without reading the comments about irrelevant subjects.

The principal advantages of electronic conferences are that the information is categorized
by topic and the channel is asynchronous, allowing sender and receiver to access the
information when convenient.

The principal disadvantages of electronic conferences are that they require deliberate
access. Whereas messages from an email list arrive in a persons mailbox automatically,
he or she must deliberately access an electronic conference to see what new topics or
responses have been added since his or her last access. If the person forgets to access the
conference regularly, he or she might miss an important message. Also, those posting
responses to items on the conference may not stick to the subject of the item. Such
deviation from the topic is usually called drift, and if the amount of drift on a conference
is significant, the usefulness of the conference is diminished.
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Web-based Communication

Since its inception in 1992, the portion of the Internet known as the World Wide Webor
more simply as the Webhas grown at virtually an exponential rate. Most organizations of
any size and thousands of individuals have Web sites, which consist of one or more pages
of information. One of the reasons that the Web has grown at such a phenomenal rate is
that it provides many of the advantages of the other communication channels with very
few of their disadvantages.

Information presented on the Web can include text, graphics, sound, and video. It can be
prepared quickly or carefully, depending on the purpose of and audience for the message.
It can also allow for immediate feedback by providing email addresses or special forms for
feedback on specific topics. Web sites can be designed for access by anyone with an
Internet connection or for a limited audience on an organization-specific Intranet.

Materials for the Web use a special computer programming language known has Hypertext
Markup Language, or HTML, for formatting text and graphics for online readability. The
inclusion of feedback forms and other types of interactivity requires additional software.
While programs, such as Microsofts FrontPage and Netscapes Composer, can help
individuals prepare acceptable Web pages, effective Web site design and management
usually requires special training.

The advantages of the Web as a communication channel is that Web pages can
communicate quickly using text, graphics (including animated graphics), sound, and video
with anyone with an Internet account and allow for immediate feedback. Web page
authors have considerable control over the appearance of their material using HTML and
other programming languages.

The principal disadvantage of using the Web to communicate is that the receiver must
want the information badly enough to look for it. Most communication channels allow the
sender to initiate the process, perhaps even at times inconvenient for the receiver. To
communicate on the Web, however, the sender places the information on a Web site and
then must wait for the appropriate receivers to access it. Another disadvantage is that the
sender forfeits some control over the appearance of a Web-based document. Receivers
have the option of choosing not only when they access the information but the appearance
of the document as well. Receivers can, for example, choose to view or print the

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document using a typeface and/or type size different from the one selected by the
author.

An additional disadvantage of Web-based communication is that the same information will


display differently depending on the computer platform, the size of the monitor, and the
Web browser being used. For this reason, Web designers need to test materials on
common computer systems and with different Web browsers.

Written

Written communication should be used when a message that does not require interaction
needs to be communicated to an employee or group. Policies, letters, memos, manuals,
notices and announcements are all messages that work well for this channel. Recipients
may follow up through an electronic or face-to-face channel if questions arise about a
written message.

Information is the lifeblood of an organization. To effectively convey information,


communication is necessary. Communication is conveyed in several forms, including verbal
and written methods. It is important that the method used to convey the information is
understandable by its intended recipient. Otherwise the communication is wasted and a
business could suffer. The advantages of writing are that it facilitates the transfer of
meaning across the barriers of time and space better than either nonverbal or oral
messages. Writing provides a relatively permanent record of the information. Written
documents are easy to store, retrieve, and transmit. Writing also allows the sender to
prepare a message carefully at a convenient time of his or her choosing, and allows the
receiver to read it at his or her convenience and prepare a carefully worded reply.

The principal disadvantage of writingespecially in the traditional formats of letters,


memos, and reportsis that it is a much slower channel of communication than either the
nonverbal or oral channel. For this reason, clarity is much more important with a written
message than it is with an oral message. Also, because the absence of prompt feedback
deprives the sender of the opportunity to modify the message according to the response
observed in the audience, the psychological impact of a written message requires careful
consideration.

Short document message types include the following:


1. Messages to Obtain Information
2. Positive and Routine Messages
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3. Negative Messages
4. Persuasive Messages
5. Messages that Negotiate

Internal Communication Channels

Internal communication channels include face-to-face meetings, internal emails,


newsletters and memos, communications between managers and employees, and
communications between peers.

External Communication Channels

External communication is any communication between a business and the outside world.
Public relations statements, press releases, marketing materials, commercials, and
articles and books written by or about the business are all examples of external
communication.

Importance of Communication Channels

Effective communication across both channels is necessary for a business to thrive.


Internal communication keeps a business viable. Without communication between all
levels of the business, directives cannot be completed, slowing the growth of the business.
External communication is the lifeblood of a business. Without clear communication of a
company's products to customers, a business will not grow.

Communication Breakdown

Effective communication in both channels must be clear and convey the correct message.
A lack of communication internally, such as misunderstood directives between
management and associate-level employees, can lead to a breakdown of business
processes. A cloudy external message can lead to decreased sales and a negative effect
upon a business' bottom line.

Body Language

Communicators must be careful that what they are saying is not contradicted by the
method of delivery. A face-to-face meeting between a manager and employee can be
completely derailed if the deliverer of the message's body language states the opposite of
what is intended. For example, a manager who listens to his employee's concerns with his

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arms folded and shoulders raised is indicating he is not open to what is being presented to
him, even if he truly is concerned. His body language is undermining his actual message.

Clouding the Message

External communication should be as clear and concise as possible and not clouded with
ambiguity or vagueness. When authoring sales materials, keep in mind that potential
customers do not want to be sold to or told how great your product is; they want to be
moved to buy and will determine the greatness of the product themselves. Your message
should portray how the product or service can make life easier for them. For public
relations and press announcements, this concept also applies: ensure the message
conveyed explains how your company's product can help the audience.

Cultural Considerations

Cultural differences also must be taken into consideration. What means nothing to one
culture speaks volumes in another. For example, in some Asian cultures, it is considered
disrespectful to look a supervisor in the eye. However, in the American culture, not
looking directly at someone while speaking to them conveys either insecurity or
untruthfulness. It is important to know your audience and to adapt your message to fit it.

Importance:
1. This ensures a free flow of information in the organizational hierarchy
2. The directions and the flow of communication determine the motives at each level
and hierarchy. This ensures realization of organizational objective.
3. It ensures more productivity and efficiency at work.
4. The feedback mechanism between various levels of organization helps in ensuring
accurate information.

Flow of communication in formal surroundings or formal communication


channels:
1. It transmits information such as goals, policies and procedures of an organization.
2. Messages in this type of communication channel follow a chain of command.
(superior most subordinates)
3. These include transfer of information with regard to memoranda, reports, meetings
etc. in the chain of command. Other example of a formal communication channel
would be a business plan, customer satisfaction survey, annual reports, review
meeting, organization manual reforms etc.

20

TRY ON YOUR OWN:

Q. Write a formal communication letter from the CEO of a Company to the


low level management asking them to form a grievance committee and
test their problems.

CLUE:

CEO
ABC Company

XYZ
Manager.

Date: 13th January, 2014

Subject: Form a Grievance Committee

Sir,

This is to

Informal flow of Communication:


1. There always exists an informal communication within a formal communication
channel. Informality of speech may sometimes disrupt the chain of command.
Therefore, it is the task of the upper level manager to strike a fine balance
between the formal and informal communication channel.
2. Discussions between the employees and a small talk, team work, quality circules
etc. form an informal flow of communication.

Upward Communication:
3. It travels from sub-ordinates to superiors and continues in organization hierarchy.
Therefore, it is important to keep following in mind:
i) Be sure that message that is conveyed is important and accurate and
complete.
ii) Try to be brief and to the point.
iii) Regular communication is important.
iv) If a problem is presented, then also try to give a problem solution.

Lateral (Horizontal) Flow of Communication:

This type of communication includes horizontal flow of information among people on the
same or similar organizational levels and sometimes also with a diagonal flow but at the
same level among people, who are no directly related.
21

1. This type of communication ensures better interaction.


2. It helps to know many people in the organization.
3. It also ensures peer communication and establish good working environment
4. It helps in sharing more information.
5. It tries to establish new areas of responsibility and interest, which helps in more
interaction.
6. It tries to give sincere and positive feedback as and when required.
7. This type of communication offers help and co-operation in the existing
organizational setup.

Accordingly to Leavitt, the following conclusions were drawn for the different directions
of communication.
1. One way communication is faster than two way communication.
2. Two way communication can be more accurate than one way.
3. Receivers of information are surer of them and make more correct judgments of
how right and wrong they are in the two ways.
4. The sender sometimes feels psychologically upset in two way system because the
receiver may become his mistake and point in out to.
5. Two way communication is more disorderly than one way communication.

According to Leavitt, one way is more efficient to an outside observer.

TRY ON YOUR OWN:

Q. Mr. XYZ is assistant manager (HR) in ABC Company. He is responsible for


fixation of yearly salary increments of the employees. In the current
financial year, some employees had grievances regarding the biased
salary increments of some employees. Mr. XYZ is supposed to write a
feedback report to be submitted to the MD, after discussing the agenda
with his colleagues of the organization. Draft the report.

CLUE:

SALARY INCREMENTS (2013-2014) FOR EMPLOYEES

- Prepared by XYZ

Agenda:

Biased salary increments for some employees.

22

Problem Statements:

In the current financial year, a section of employees have a grievance that some
employees, even if they were non-performing were given more increments.

Participants:
Mr. DEF, Assistant Manager (Finance)
Mr. PQR, Assistant Manager (Bank)
Mr. STU, Associate Manager (HR)
Mr. XYP, Assistant Manager (Design)
Mr. LNM, Assistant Manager (Technical)

Points of Discussion:
i) Mr. XYP got no increment in this year while they were performing.
ii) Mr. STU got less increment than he should get.
iii) Mr. XYZ got less salary increment.
iv) Mr. OPQ, who is a non-performer, got 20% salary increment.

Result:
i) Those, who are performing should get an increment of 10-20% in their salaries.
ii) The non-performers should be trained and be divided according to their
specializations.

Types of Communication:

1. On the basis of form and style

Oral and written

Verbal Non-verbal

2. Nature of Communication
Interpersonal
Intrapersonal
Extra personal
Mass Communication
Organizational communication

23

Written Communication
1. It is a functional way of communication.
2. Ideas and thoughts may be communicated through written correspondence in form
o letters, reports, notices, circulars, memorandum etc.
3. All the different forms of written correspondence have a prescribed format. For
example notice is written in different format as general essay.
4. It has to be ensured on the part of the writer to use a good formal language and a
formal conversational tone and also respecting the dignity and designations of
recipients.
5. It has a wider mass appeal and for a wider coverage, it is also circulated in printed
form in the form of newspapers, magazines and journals.

TRY ON YOUR OWN:

Q. Suppose, you are XYZ of S and S Associates, draft a proposal


advertisement dressing the MD and requesting him to open a new
consulting firm by utilizing the existing human resources of S and S
Associates.

CLUE:

To

The Managing Director


S and S Associates

XYZ
S and S Associates

Date: 17th January, 2014

Subject: To open a new consultation firm

Dear Sir,

This is to inform you that it has been a long time that we have been an associate firm.
Now, it is the time to emerge as a major association. I have enclosed the proposal as
follows.

Yours truly,

XYZ

A Proposal for opening a new consultation firm by utilizing the existing human resources

24

- Prepared by
XYZ
S and S Associates

Submitted to Managing Director


S and S Associates

Date: 17th January, 2014.

Problem Statement:

Establishing a new consultation firm for utilization of the existing human resources.

Points of Discussion:
i) The resources are limited and have infinite uses.
ii) Alternatives are not many.
iii) To open a consultation firm for their better utilization.

25

AREAS OF CONSULTATION
1. Legal Solutions
i) Corporate Laws
ii) Business Laws
2. HR Solutions
i) Confidence Skills
ii) Managing Skills
iii) Development Skills
iv) Team Spirit
v) Unity
3. Financial Management
i) Trial Balance
ii) Ledges Balance
iii) Balance Sheet
iv) Micro Payment financial
v) Events financial
4. Software
i) Hacking
ii) Internet
iii) Hardware Management
iv) Programming
v) Browser

Oral Communication:
1. It provides an opportunity for a face to face communication
2. It helps to discuss an issue and receive immediate feedback of comments.
3. It helps in modulating speech.
4. It helps in conformity by realizing one with a particular group.
5. It helps in identifying and specking different language spoken all over the world.
6. It helps in understanding the emotions and experience conveyed by words.

Disadvantages:
1. Distortion of information / messages.
2. Mis-information
3. Unable to relate oneself with the distinct group speaking an entirely different
language.
26

4. Much of oral communication is based on memory and every time, it cannot be


recorded and retrieved.

Elements of Oral Communication:


1. Content: The matter, which has to be spoken. It must be thoroughly researched
by presentation and otherwise in a general conversation, one must speak
something that is relevant and accurate.
2. Grammar and Language: A conversational tone needs to be developed during a
conversation or oral communication. The grammar needs to be perfect in terms of
tenses, voice etc.
3. Speech Modulation: Rise and fall in pitch. A sentence needs to be modulated
during speech. Try to avoid a flat tone.
4. Pause: Pauses are regarding generally during an oral presentation to present an
effective speech, to create curiosity in the minds of audience and sometimes also
for an effective stage presence.
5. Use of expressions and inflection: It is important to make the speech emphatic
and lively.
6. Accent and pronunciation: Oral communication envisages the use of exact
pronunciation and learning different accents of same language.
7. Tone: It means the manner of speech in different emotional states of a person.
Eg. The tone differs when a person is happy, angry, sad or motivated or
disinterested.
8. Understanding the audience: As such the speaker needs to understand the level of
understanding of audience. This way he is also able to relate himself with
audience and deliver the content.
9. Consistency: Moving with the flow of the speech and following the different
patterns and trends slowly and smoothly.

Communication Types:
A. Extra personal: This type of Communication deals with Communication between
human beings and non-human entities. Eg.
1. Interaction with a computer using programming language.
2. Communication with pets: - In this type of communication what is most
required, is the understanding between speaker and receiver and that too
with s sign language.
B. Interpersonal: This takes place within India and it has following attributes:

27

1. The sender is the person himself using articulation.


2. The receiver is our own brain.
3. The feedback of information is again received by brain.
4. Therefore, in this type of communication, a person may talk to himself
through a monolog or try to analyze his opinion in a different manner.
5. It can also be an interaction between the family members and friends.
6. It depends upon the psychology of an India and also the relationship that he
shares with his friends and family.
C. Organizational:
1. Organizational communication takes place at different hierarchys within an
organization.
2. Therefore, it can be divided into two parts
a) Internal operations and
b) External operations

Internal operations consist of all the communication that occurs within


organization limited at organizational level only.

External operations: It deals with all the work related with people outside the
organization.

Personal: Employees also need a little personal space in organization and all
communication done informally in the organization may be termed as personal
communication. Eg. An employee inviting everybody to a lunch party.

D. Mass Communication: This type of communication moves through mass media


channels. Eg. TV, newspapers, books, journals
1. In it, we require a mediator to transmit information.
2. It has a larger outreach. Therefore this communication reaches to an
audience which may be scattered over wide geographical areas.
3. It is impersonal because much of information is transmitted formally, in a
formal tone and the people are unknown to each other.
E. Interpersonal: It takes place between different individuals but it requires
concordance of speech. Other elements of it are help and cooperation, sincerity,
team building, confidence etc.

Q. Explain the difference between inter and intra personal communication


with reference to team building in an organization. (CLUE: Leadership
attribute or quality is intrapersonal and team building is interpersonal)
28

Approaches to Communication and Networks

There are many approaches to communication in an organization.

1. Formal and Informal Approach: Example of formal following a particular


hierarchy and formality of speech and also formal ways of writing.

Informal certain inter-personal skills like empathy and cooperation among the
colleagues form a part of informal approach.

2. Top-down Approach: This is also called as downward communication approach.


This is used by a top level management to communicate to the lower levels. This
approach is used to implement policies, guidelines etc. in an organizational
communication sometimes there can be distortions of messages and therefore,
there should be certain feedback mechanisms.

3. Functional Approach: This is an application based approach where distinct and


definite role functions care accorded to the various departments in the
organization and also at different hierarchy level. Example the finance
department deals exclusively with finance and account; this department is also
centrally responsible to the organization.

4. Emergent Approach: This deals with types and styles of communication patterns,
which may be used in near future and may also act as a crisis shooter mechanism.

5. Research Methodologies: Any organization has its own methodology and working
and also a platform where the employees find opportunities to research grow and
develop. Therefore, a distinct research and development team is created in an
organization. Organizational communication is open methodologically and
therefore, different paradigms of research eg. Positive, interpretive, critical,
analytical, modernistic and discursive areas of research are being explored. The
organizational communication in terms of research may be inclined towards
managerial communication, communication research, communication studies,
communication models etc. to influence their reputation through a variety of
activities, which may collectively express the organization identity and promote a
particular ideology of the organization.

29

6. Approach Regarding Constitution of the Organization: This deals with how


communicative behaviors would modify the organizational processes. This also
ensures how communication plays a constitutive role in the organization and how
the organization within which we interact may affect our communication
behaviours. This also makes sure about the structures other than the organization,
which might be constituted through the communicative activity of employees. It is
actually the sum total of all concepts and ideologies, processes and products, goals
and objective, functioning together with perfect utilization of human resource that
constitutes an organization.

7. Narrative Approach: In it what matters is how to group members, employ


narrative techniques to incorporate new members in the organization.

It also manages with story telling techniques: for eg. Do the organizational stories
act on different levels? Or are there negative narratives purposely involved in
achieving specific outcomes or in another case are there any specific roles of
organizational story teller. This approach also identifies the manner in a way that
an organization attempts to influence its employees and also other organization.

8. Identity Approach: This approach answers the following questions: -


(i) What do we see ourselves as in the organization?
(ii) Do communicative behaviours or occurrences in one or more of the
organization in which we participate effect change in us.
(iii) Is it possible for individual to successful resist organizational identity?
(iv) Do people, who define themselves buy their work organizational
membership communicate differently within some organizational set up and
also define themselves more by a formal set of relationships.

9. Power Approach: This means the use of particular communicative practices within
an organization setting that would reinforce or alter the various inter-related
power relationship within the setting. It also ensures the potential responses or
those within or around these organizational settings constrained by factors or
processes either within or outside the organization.

10. Inter-relatedness: This approach deals with how the human resource in an
organization is utilized for different activities within the same organization. It also

30

helps in communicative interactions in a single organization setting and also tries


to find the collective experiences of all employees in an organization.

TRY ON YOUR OWN:

Ques. Mr. XYZ joins a new company and soon becomes the Manager Corporate
Communication in an organization. He has a good command over the
language and has a formality of speech still the MD of the organization is
a bit frustrated about his behavior and dealings with lower management.
What are different communicative approaches in this situation?

Communication Approaches:

Rural
1. Mass Media: Radio
Community

Rural radio: It is an important tool for rapid diffusion of important messages


related with rural life. Eg. Messages on new agricultural production ideas and
techniques as well as on health, nutrition, family planning and social and cultural
issues. A rural radio can be combined with other media and can be used for
training and transfer of technologies.

It can also promote dialogue and debate on the major issues of rural development
as well as providing a platform for expression of rural womans needs and
aspirations. It is a tool that can be used to develop community cohesion and
solidarities.

Community Radio: It is an important channel for motivation and education of local


development. The community stations treat issues concerning every day life of
listeners and try to bring awareness amongst community.

2. T.V.: Information related to entertainment, sports, national as well as


international affairs etc. It has the greatest impact on people and has the ability
to shape values, attitudes and perceptions of the common people It is prestigious
and powering tool that can raise awareness generate discussion and inc.
knowledge.

3. Audio/Visual medium: Low cost audio/visual media such as video, audio cassettes,
CDs are valuable tools in assisting and motivating common people. There are
many capacities building program provided by audio/visual training made.

31

Participatory video also facilitates discussions and also helps in developing


communication skills.

4. Multimedia: Each communication program should make use of a combination of


several media approaches and tools with inter-personal channels or should have a
multi-channel communication.

BARRIERS TO COMMUNICATION

General Specific
- Linguistic - Encoding
- Physical - Decoding
- Attitudinal -
Transmitting
- Perceptual

Linguistic Barriers:

Language that describes what we want to say in our terms may present barriers to others,
who are not familiar with our expressions, because words or jargons. This also implies a
cultural significance because language is a carrier of culture.

The use of inter-nationals languages in this age of globalization goes a long way in
removing the language barriers.

Physical Barriers:

In an organization, the physical barriers may include:


1. Areas into which strangers are not allowed.
2. Separate areas for people of different status.
3. Large working areas or working in one unit i.e. physically separate from others.
4. Many employees in an organization have a personal space or a very large area has
many small personal spaces (cubicles), this helps in developing a cohesive team.

Attitudinal Barriers:

These are behaviors that prevent people from communicating effectively. These barriers
may result from personality conflicts, poor management, and resistance to change or a
lack of motivation. Effective receivers of message should attempt to overcome their own
attitudinal barriers to facilitate effective communication.

32

Perceptual:

Every individual has a different view of the would and has a different thought, assumption
or perception. Therefore, no two individual can think on the same patterns. Therefore,
this barrier can be removed only through discussions and clarify of expressions.

Emotional:

This comprises of fear, mistrust and suspicion. Much of the emotional balance or
imbalance is rooted in childhood. Much lies in the hands of the parents who can create
meaningful relationships during childhood.

Cultural:

There are certain attributes of culture for eg. Recognition, approval and inclusion.
Therefore, conformity to a group is quite distinct in a group. Other groups which do not
conform find difficult to communication.

Interpersonal Barriers:

There are certain areas where individual distance themselves from each other. They are:
Withdrawal, rituals, working activities, past times and closeness.

Specific Barriers:

Encoding Barriers:

This is a process, which selects and organizes symbols to represent a message that
requires the skill and knowledge. The following are some of the encoding barriers.
i) Lack of sensitivity of the receiver or the listener: This recognizes the receivers
needs and states and also the knowledge of subject. Eg. If a person is angry, the
effective response may be to listen to that person and also try to understand the
context. Therefore, understanding the needs and aspirations of the listener is
supposed to be sensitive.
ii) Lack of basic communication skills: The receiver is less likely to understand the
message if the sender has not chosen effective words and sentences.
iii) Insufficient knowledge of the subject: If sender lacks specific information about
something, the receiver is likely to receive an unclear or a mixed message.
iv) Overload of information: If the sender tries to convey so much of information that
the receive is unable to interpret then there is a situation of information overload.

33

v) Emotional Interference: If a person is too pre-occupied with his emotions in terms


of being joyful, happy, anxious, fearful or angry, he may not be able to convey the
exact information.

TRY ON YOUR OWN:

Ques. A person joins an organization in the capacity of being the Manager


Public Relations. He is impressed by the middle level management so
much that he does not even look after the problems of lower
management. Explain barrier to communication in this context. (CLUE:
Demonstrate the functioning of the system/process channel)

Models of Communication

Elements:
- Sender
- Receiver
- Feedback
- Channel/Medium/Barrier

1. Linear Model:

In this model communication, it is portrayed as one way process or a liner process in which
the speaker speaks and listener listens.

Laswells Model of communication is a linear model based on the following:

Who One way

What Eg formal lecture in a class, (1-way) video conferencing,


Podcasting (one way)

Channel

To whom

To what effect

TRY ON YOUR OWN:

Q. XYZ joins a club and takes interest in shooting and photography. He


develops a passion for public speaking and is invited at various places to
present his lectures on leadership and team building. He is able to
deliver a very fine lecture but is unable to produce an everlasting effect
34

on audience. Discuss the model of communication that he follows and


also measures to overcome them.

Interactive Model:

The protagonist of this model is schramm. This tried to overcome the flow of the linear
model. In this model the listener provides feedback to the sender. The speaker of the
message also listens to the feedback given by listener. Turn-taking is a major feature of
this model and feedback may be given verbally and non-verbally. This model also
indicates that speaker and listener communication better if they have common fields of
experience/vision (chaos and proper feedback).

Transaction Model:

There were certain flaws in the interactive model. Eg. If the sender and the receiver of
message spoke simultaneously, it could lead to chaos. Therefore, transactional model of
communication tried to prove better the three implications.
1. The transaction communication means that communication is an ongoing process
and is changing continuously.
2. In any transactional process, each element exists in relation to all other elements.
There is this inter-dependence where there can be no source without a receiver
and no message without a source.
3. Each person in communication process reacts depending upon factors such as
background, cultural, self-esteem, belief and attitude.

TRY ON YOUR OWN:

Ques. Mr. XYZ is an executive in corporate communication in a private firm.


He keeps travelling and has been successful in developing his business.
Analyze and discuss the various models of communication that he follows
to develop his business and to maintain his stature in corporate
communication.

Shannon and Weaver Model

It was initially designed to study the functioning of radio and telephone technologies. So
it consisted of sender, channel and receiver. The recognized that noise interfered with
listening and their model of communication was trying to find answers to three questions.
1. How accurately can the message be transmitted? (Technical problem)
2. How precisely and effectively can the meaning be conveyed? (Semantic problem)

35

3. How effectively does the received meaning effect behavior? (Effectiveness


problem)

Constructionist Model:

This believes that the process of communication is in itself the only model where messages
exist and have a meaning. The packaging of the message cannot be separated from the
social and historical context. Therefore, communication is deeply rooted into structures
of the society and behavior of individual. Roth well defined communication in terms of
noise, sender, receiver, encoding, decoding, channel, feedback and message.

Constitutive Meta Model:

This model is an inclusive whole of communication which is viewed as practical art of


discourse, mediated by signs and symbols, interaction of individual, flow of information,
sharing experiences, understanding social and historical context and also all other
assumptions that can be challenged.

Network of communication

Path of Communication
Structures Grapevine
Wheel
Circle
Star
Linear

Transmitting Barriers:

These are the barriers that get in the way of message transmission. The following are
some of the barriers.
1. Physical distraction: These are the distractions related with either the vicinity or
the use of audio-visual aids. Eg. A bad phone line or a noisy class room or an e-
mail message that contains all grammatical error. Sometimes, this barrier is also
due to bad, sloppy, unprofessional physical appearance.
2. Conflicting messages: Messages that cause a conflict in perception for the receiver
may result in incomplete communication. Eg. Mixed message use of slangs, or
jargons unknown to the receiver. Sometimes time factor (lack of time) leads to
inaccuracy in gathering and compiling data.
3. Channel Barriers: If the sender chooses an inappropriate channel of
communication, then communication tells distorted. Eg. Detailed instructions
36

presented phone or discussion an agenda over the phone may be an inappropriate


channel.
4. Long Communication Chain: The longer the communication chain, the greater are
the chances of error. This means that the message is passed through too many
receivers. The message may become distorted.
5. Sometimes the communication cycle may break down at the receiving end. These
are called as decoding barriers.
i) Lack of interest: If a message reaches a listener or a reader, who is not
interested in the message, he reads the message hurriedly or listens to the
message carelessly, which causes miscommunication.
ii) Lack of knowledge: If the receiver is unable to understand a message filled
with technical information, the communication breaks down.
iii) Lack of communication skills: This also involves weak reading, listening
speaking and writing skills.
iv) Emotional distractions: Sometimes emotions interfere with creation and
transmission of messages. Therefore, the messages are misinterpreted and
negative impressions are put up.
v) Physical distraction: It is when receiver of communication faces problems
due to surroundings or the use of tools and devices. Eg. Bright lights, loud
noise, glare on computer screen.
vi) Responding barriers: Sometimes the communication cycle may be broken if
the feedback is unsuccessful. This is mainly because of two reasons:
a) No provision of feedback
b) Inadequate feedback
vii) Semantics Barriers: This deals with misunderstanding. The feelings of
sender or getting a wrong meaning out of it. The words, signs and symbols
used in communication are explained by the receiver in the light of his
experience, which creates doubtful situations.
viii) Personal Barriers: There are some barriers corrected directly with the
sender and the receiver in terms of their own personalities.
ix) Intrapersonal Barriers: This deals with barriers related with self conflict.
Eg. Fear of authority, lack of confidence, too much of self-pride, low
psychological conditions.

37

CLIENT COUNSELING
Definition or Meaning of Counselling

The term counsel has been derived from the term consillium, meaning advice. Counseling
mean different to different people. To some its about advice, and to others it may be
sympathy.

Counselling may also be termed as the following:

Counselling is a process of exploration by two people at identifying problems and seeking


solutions.

Counselling is made up of a series of solution based conservation.

Counseling means by which one person helps others through purposeful communication.

Counseling is a process that enables a person to bring out issues and reach decisions
affecting their present problems and life; counseling is sought out at times of change or
crisis. And if that is not so, however, as counseling can also help manage our life.

Counseling involves talking with a person in crisis or a problem situation and helps that
person solve a problem or helps to remove the problems that will cause the person to
understand and/or modify his behavior, character, values or life circumstances.

Counseling is about helping people who were some aspects of their thoughts, feelings or
behavior at their life, or simply to explore and/or clarify their own feelings.

Counseling means talking to a counseller, i.e., someone who is properly trained and has
regular professional supervision.

Counseling involved a relationship. It involves a relationship between a professionally


trained, competent counselor and an individual seeking help. This relationship is not
casual, matter of fact or business like. It is a characterized by warmth, understanding,
acceptance and trust.

Webesters dictionary defines counseling as consultation, mutual interchange of opinions,


deliberating together.

38

Pepinsky and Pepinsky (1954) state that counseling is a process involving an interaction
between a counselor and a client in a private setting with the purpose of helping the
client change his behavior so that a satisfactory resolution of needs may be obtained.

Pepinsky and Pepinsky further say, counseling relationship refers to the interaction which
(i) occurs between two individuals called counselor and client; (ii) takes place within a
professional setting; and (iii) is initiated and maintained as a means of facilitating changes
in the behavior of the client. The counseling relationship develops from the interaction
between two individuals, one a professionally trained worker and the other a person who
seeks his services.

Wren says, counseling is a dynamic and purposeful relationship between two people who
approach to mutually defined problems with mutual consideration of each other to the
end that the younger or less mature, or more troubled of the two is aide to a self-
determined resolution of his problem.

Hahn and Maclean define counseling as a process which takes place in a one-to-one
relationship between an individual beset by problems with which he cannot cope alone
and a professional worker whose training and experience have qualified him to help others
reach solutions to various types of personal difficulties.

Arbuckle says, counseling is helping a person to come to see who he really is, what he has
and does not have, what he can do easily, what he can do with difficulty and what he
cannot do at all .It is a close sharing of emotional yet formal relationship with one who
has formed for him a high regard. It can offer him unconditional acceptance, but one also
cannot guarantee sometimes, and also sometimes no answers.

Smith (1985) defines counseling is a process in which the counselor assists the counselee
to make interpretations relating to a choice, plan or adjustments which he needs to make.

According to Halm and Nohean (1953) counseling is one to one relationship between an
individual troubled by a problem with which he cant cope alone and a professional worked
with training and experience have qualified him to help others find solutions to various
types of personal difficulties.

Blocker defines counseling as helping an individual to make him aware of himself on the
ways in which he is reacting to the behavior influences of his environment. It further helps

39

to establish some personal meaning for this behavior and also seek to clarify a set of goals
and values for future behaviour.

James Michael Lee and Nathaniel J. Pattan say, counseling is the relationship between two
persons in which one person attempts to assist the other in so organizing himself to
achieve a particular form of happiness, adjustment to a life situation; short, self-
actualization. Counseling always involved a simple relationship that is one client and one
guidance from the counsilor or an informal interview situation.

As per Merie M. Ohlsen, counseling is an acceptance of safe relationship in which clients


learn to discuss about worries and upsets them, to define precise behaviour that is
requires to acquire the essential social skills, and to develop the essential self-confidence
to implement desired new behavior.

Rogers (1952) states that counseling is a pattern through which the structure of the self is
relaxed in the safety of the relationship with the therapist and previously desired goals are
perceived and then integrated into an altered form. Rogers further says, counseling is a
process by which the client is helped to feel and behave in a more personally satisfying
manner through interaction with an uninvolved person (the counseller) who provides
information and reactions which stimulates the client to develop behavior which enable
him to deal more effectively with himself and his environment.

Gustand (1953) states that counseling is a learning oriented process carried in a simple one
to one social environment in which the counselor, professional competent in relevant
psychological skills and knowledge seeks to assist the client by methods appropriate to the
latter needs and within the context of the total personal programme, to learn how to put
such understanding into effect in relation to more clearly perceived, realistically defined
goals to the end that the client may become a happier and more productive member of
society.

Rechards Nelson and Jones, R. in their Theory and Practice of counseling (1952) state. The
term counseling is used in a number of ways. For instance, counseling may be viewed as a
special kind of helping relationship, or as a set of activities and methods, as defining an
area in which services are provided.

Nature of Counselling

40

(i) Counselling as a Helping Relationship: In Counselling, some central qualities


offered by Counselling in their interviewing relationship with clients which most
counselors would regard as necessary and sufficient for client changes to occur.
The counselor-offered qualities, which are called core conditions are emphatic
understanding, respect for the clients potential to lead his or her own life and
congruence or genuineness. They are viewed as representing not only the
counselors skills, such as reflection of feeling and content, but also the counselors
fundamental attitude to clients or capacity for altruistic care and concern.

(ii) Counselling as a Set of Activities: Counselling may be viewed as a set of activities


and methods, including an empathetic relationship, which counselors use when
working with their clients. These activities and methods may represent theoretical
viewpoints, such as to rationalise behaviour, psychoanalytic or behavioural, other
than the personalised viewpoint. Counselling is a psychological process which is
generally viewed as a helping relationship, characterized by varied but specific
conditions, or a set of activities and methods derived from general theoretical
positions.

(iii) Counselling and Psychotherapy: Trax and Carkhuff use the terms Counselling and
psychotherapy interchangeably. Both Counselling and what is better termed the
psychological therapies are based identically on informed and planful application
of techniques which have established psychological principles. Both Counselling and
psychotherapy make use of a variety of theoretical moderated stress the need to
value the client as a person who needs to sympathetically hear what is
communicated, and develop the capacity for self-help and self-responsibility.
Tylor stresses The aim of therapy is generally considered to be a change of some
sort. Let us use Counselling to refer to genera process, the aim of which is not to
change the client but to enable him to utilize the resources he now has for coped
up with in life. Counselling is client-centred rather, generally y based on
humanistic rather than specific techniques, based on humanistic rather than
psychoanalytic theory and takes place in non-medical as contrasted with the
specific settings.

(iv) Counselling as a Special Area for Providing Services: No really valid distinction
can be made between Counselling and the psychological therapies in terms of the
activities for the clients in the Counselling or therapeutic process. The difference
between Counselling and the psychotherapy rests more on different populations
and settings. In general, Counselling is more useful for disturbed clients in non-
41

medical settings, whereas the common Psycho- therapies focus on moderately to


severely disturbed and often those diagnosed as psychotic, in in-patient and out-
patient settings. An additional distinction may be that the distinct populations
have differences as well as similarities in dealing with different problems.
Counselling may be more concerned with occupational-choice problems and
difficulties. In studying than are their psychological therapy counterparts.

Elements of Counselling

The major elements of Counselling are:


(i) Counselling involves two individuals face-to-face one seeking help and the other,
a professionally trained person who can help the first.

(ii) There should be a relationship of mutual respect between the two individuals. The
counselor should be friendly ad cooperative and the counselee should have trust
and confidence in the counselor.

(iii) The aim of Counselling is to help a client to form a decision, make a choice or find
a direction at some important fork in the road such as that a planning a life career
or a programme.

(iv) It is more than advice-giving. Progress comes through the thinking that a person
with a problem does for himself rather than through solutions suggested by the
counselors.

(v) It helps the counselee acquire independence and develop a sense of responsibility.
It helps him explore and fully utilize his potentialities and actualize himself.

(vi) It involves something more than the solution to an immediate problem. Its function
is to produce changes in the individual that will enable him to extricate himself
from his immediate difficulties.

(vii) It concerns itself attitude as well as action.


(viii) Emotional rather than purely intellectual attitudes are the raw material of the
Counselling process. Information and intellectual understanding have their place in
the Counselling process. But it is the emotionalized feelings which are most
important.

(ix) Counselling may take time to work, depending upon the nature and number of
problems being presented by the client.

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Principles of Counselling
1) Counselling is a process. It is necessary for everyone to understand that Counselling
is a process and continuous process. Failure to understand this will result in
misunderstanding and disappointment.

2) Counselling is for all. It is for the development of all.


3) Counselling is based on certain fundamental assumptions:
a) Every individual in this world is capable of bearing ones responsibility for
him/herself.

b) Every individual has a right to choose his/her own path.


4) Counsellor does not deprive the right of self-esteem. Rather, he simply facilitates
choice. The counselor needs to respect to the individual and accept him/herself for
being what he is.

5) Counselling is not advice giving.


6) Counselling is not thinking for the client, but helping the client. Counselling is for
enabling the client for positive and hopeful thinking.

7) Counselling is not problem solving. The Counsilor assists the person to find solution
of his/herself by thinking objectively.

8) Counselling is not interviewing but converging the ideas/discussions with the client
in order to help him/her develop self-understanding.

9) The counselor should determine individual different for them, accordingly.


10) The counselor has to prepare the client to the criticism including self-criticism.
11) The counselor acts as a facilitator or a catalyst that creates an atmosphere which
is warm and cordial , not at all threatening, through the warm and accepting
disposition with the client , the counsilor helps the client to understand herself
and understand him/herself better.

Types of Counselling

There are three widely known viewpoints that generally comes in the practice of
Counselling:

1) Directive Counselling: E.G. Williamson is the chief exponent of Directive


Counselling. In the directive Counselling, the Counsilor plays the major role in the
process. He directs directly to the client. He is the leader of the situation or
normally when discussing about the problem. The problem and not the client is the

43

focus. The client works under the counselor who helps and supports him. The
counselor is supposed to be an optimistic person or one who passes judgment over
the specific and needful behavior. Directive Counselling gives more emphasis on
the intellectual rather than to the emotional attributes of an individuals
personality. The six steps of directive Counselling according to Williamson are: (i)
Analysis of the situation (ii) Synthesis of the problem; (iii) Diagnosis of the problem
(iv) discover the causes of the problem; (v) General prediction of future
development of the problem (vi) Counsellor or prescribing remedial measures.

2) Non-directive Counselling: This type of Counselling is also known as client centred


Counselling. Carl Rogers has been the chief exponent of this type of Counselling.
The steps in the Counselling, according to Roger are: (i) Coming of the individual
for giving help; (ii) The helping situation; (iii) The counselor encourages the
individual to express his feelings freely; (iv) The counselor accepts and classifies
negative felling; (v) Negative feelings or impulses are followed by taint and
tentative expressions of the positive feelings of the individual; (vii) this provides a
basis on which the individual can go ahead to the new level of integration; (viii)
Counsellor classifies possible decision as course of action; (ix) Counselling develops
further insight, a more complete and accurate understanding of the problem; (x)
This facilitates integrated positive action; (xi) This develops a feeling of increased
independence. These processes are not necessarily in serial order and mutually
exclusive.

3) Electric Counselling: The main exponent of the electric approach in Counselling is


F.C. Throne. He opines that counselors should not limit themselves to one method
but should attempt to vary their approaches in keeping the needs of the individual
clients in view. Throne has stressed the importance of counseller relationship with
the client.

Characteristics of an Effective Counsellor

The following are some characteristics that are most appropriate for counselor:
1) More efficient perception of reality and more comfortable relations with it: This
includes the detection of the phony and dishonest person, the accurate perception
of what exists rather than the distortion of perception by ones needs. Self-
actualizing people are more aware of their environment, both human and non-
human. They are not afraid of the extent to which they can tolerate the doubt,

44

uncertainty, and predicament accompanying the perception of the clients, rather


they are quite patient in accepting new ideas.

2) Acceptance of self, others and nature: Self-actualizing persons are not ashamed
of their innate nature, with its shortcoming, imperfections, and other weaknesses.
Nor are they critical of these aspects in other people. They respect and esteem
themselves and others too. Moreover, they are honest, open, genuine, without any
faade. They are not self-satisfied, but are concerned about solving the
discrepancies between what is desirables and what is actually good for themselves
others, and society.

3) Spontaneity: Self-actualizing persons are not hampered by others when stuck, they
do not flout it. They are not conformists, neither are they anti-conformist for the
sake of others. They are not externally motivated or even discouraged; rather their
motivation is the internal one believe in self development, the actualization of
themselves brings out inherent potentialities.

4) Problem-centering: Self-actualizing persons are not ego-centered, they try to find


out the problems outside themselves. They are mission specific people often
focussed on the basis of a sense of responsibilities and obligation rather than of
personal choice.

5) The quality of detachment and the need of being grave at times: A good
Counsilor may also enjoy solitude. This would make him possible to remain
unruffled and not care about what upsets others. He may even appear quiet and at
times asocial.

6) Autonomy: Independent of culture and surroundings: A good Counsilor, nay a


Self-actualizing person, though dependent to a certain extant on the satisfaction
of the basic needs of love, gratitude and respect and belongingness , they are not
dependent upon the satisfactions on the real world, or other people or culture or
means-to-ends, or in general or extrinsic satisfactions. Rather they are dependent
for their own development and continued growth upon their own potentialities and
latent resources.

7) Continued freshness of appreciation: Self-actualizing persons repeatedly, through


not continuously experience awe, pleasure, and wonder in their everyday world.

8) The mystic experience: The oceanic feeling: In varying degrees and with varying
frequencies, Self-actualizing persons have experience of ecstasy, awe and wonder

45

with feeling of limitless horizons opening up, followed by the conviction that the
experience was important valuable and had a carry over into dally life.

9) Gemeinschaftsgefllhl: Self-actualizing persons have a deep feeling of empathy,


sympathy or compassion for human being in general. This feeling is unconditional.
In that it exists along with the recognition of the existence of negative qualities in
others which provoke occasional anger, impalment, and disgust.

10) Interpersonal relations: Self-actualizing people have deep interpersonal relations


with others. They are selective, however, and the circle of friends may be small,
usually consisting of other Self-actualizing persons. They attract others to them as
admirers or disciples.

11) The democratic character structure: The Self-actualizing person does not
discriminate on the basis of class, education, race, or colour. He is humble in the
recognition of what he knows. In comparison to what could be known, and he is
ready to learn from anyone. He respects everyone as potential contributors to his
knowledge, but also just because they are human beings.

12) Means and ends: Self-actualizing persons are highly ethical. They know how to
distinguish means from ends and subordinate means to ends.

13) Philosophical, unhostle sense of humour: They are spontaneous, thoughtful and
know how to deal with situations. Their humour does not involve hostility, or
sarcasm.

14) Creativity: They are to be creative, each in the own way. The general notation
involved here is not the special talent, creativeness or ones own being creative
potentially, inherent in everyone or something that may be suffocated by
acculturation. It is fresh, a new way of looking at things.

15) Tolerence of ambiguity: They tolerate the uncertainty of not knowing what the
client really wishes to discuss until a trustworthy relationship is established which
will allow the process of counsiling to continue.

16) Risk-taking ability: The Counsilor tries to take risk while tackling the problems of
the client. He must be mentally strong enough to do so.

17) Capacity for intimacy: A counseling relationship can be one of the most normal
formal personal relationships. They have to develop some good traits in order to be
able to be psychologically connected to the clients at the depths of an existential
crisis.
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18) Authenticity: They are congruent, with verbal and non-verbal personalised
behaviours conveying the same meaning. They are truthful and honest. Being
authentic includes being knowledgeable and yet not to disclose. This ability is of
particular counsilors who may keep trying to learn more about themselves.

19) Empathy: This involves stepping into the shoes of the other person and viewing the
world from his/her perspective. Empathy indicates being non-judgmental. This is
an essential quality in counseling.

Counseling Tips for Building Self-Esteem

Follow these simple suggestions:


1. Never take an extreme position on any issue. Be moderate, always.
2. Remember that you control the image that others see of you.
3. Be positive solution-oriented: Never create a problem for every solution,
suggested.

4. Set realistic goals for yourself: Goal attainments are big motivators.
5. Resolve your conflicts: Conflicts reduce your feelings of self worth.
6. Manage your time effectively: This is the surest way to stay on course.
7. Engage in some activity outside of your family concerns: This helps in gaining a
better perspective of life.

8. Exercise regularly: This is important for physical well being.


9. Do not let others set standards for you: You should determine your own norms.
10. Take charge of your life: Avoid feeling hopeless and helpless, most of the time.

DIFFERENCE BETWEEN GENERAL AND LEGAL COUNSELING


1. It is the advice given in legal matters. It is it is related to law and procedures of
law.
2. Given both to Plaintiff and Defendant by the lawyer or advocate.
3. Legal Counseling is given in a very professional manner by lawyer by charging a
prominent fee.
i) Related to general subject-relationships, studies, jobs.
ii) Both professional and service related marriage counselors.
iii) In schools and colleges free guidance and counseling cells to motivate
students.

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CLIENT COUNSELING

Meaning of Client Counseling:


1. It is a process that occurs when a client and a counselor set aside time in order to
explore difficulties which may include the stressful or emotional feeling of client.
2. It is the act of helping the client to see things more clearly or possibly from a
different view point. This can enable the client to focus on feelings, experiences
or behaviour with a goal to facilitate positive change.
3. It is actually a relationship of trust. Confidentiality is paramount to successful
counseling. Generally, the counselors explain their policy on confidentiality. They
may however, be required by law to disclose information in case they believe that
there is a risk to life.

Results of Counseling:
1. Insight and understanding of oneself with greater self-awareness.
2. Changing of ones beliefs and mental models.
3. Increased acceptance and appreciation of oneself.
4. Enhanced emotional intelligence.
5. Increased ability to control oneself and ones urges.
6. Development of skills and abilities that require self-management.
7. Improved motivation towards actions that are good for oneself and greater
understanding of what others can do or may do.
8. Improvement in relationships because of clarity.
9. Trying to make changes in ones behavior because of past negative actions.
10. It must be understood that the result of counseling will depend upon the exact
information furnished by client and also it will depend upon the clients general
behavior.

Therefore, counseling is not:


1. Giving advise
2. Just being judgmental
3. Just trying to sort out problems of client
4. Expecting a client to behave in a way in which the counselor may have behaved
when confronted with a similar problem in their own life.
5. Just being highly emotional or mechanically professional with the client.
6. Just looking at a clients problems from your own perspective or based on your own
value system.
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Approaches to Counseling

1. Cognitive Behavioural Therapy (CBT)


This therapy was founded in 1960s by Aaron Beck when he made an observant that all his
counseling clients tended to have an internal dialogue that is often negative and self
defeating.
According to Beck, this internal dialogue was supposed to influence behavior,
leading to the hypothesis that changing internal dialogues would lead to change in
behavior.
This approach focuses on thoughts, images, beliefs and attitude held by the client
and how these relate to the clients behavior or way of dealing with emotions
problems. This therefore, focuses on two elements:
i) Cognitive re-structuring (of negative thinking patterns).
ii) Behvioural activation (where the client tries to overcome barriers to
participate in active).
This is also one of the major orientation of psycho-therapy because of its unique
focus on the behavioural, psychological models of human behavior.
The cognitive aspect of the approach is based on how cognitions influence the
development and maintenance of emotional issues whereas the behviour apect is
based on learning theories.

THINK IT OUT: A client approaches a lawyer with all submission and humility. H is quite
positive that the lawyer would provide him the best counseling. While counseling, the
lawyer finds that although, the client is listening, he is much pre-occupied by his own
thoughts (both emotional and thinking that he would fail). Explain the lawyers approach
to counseling and the manner in which he would motivate the client.

CLUES: Following points describe the reasons of the clients negative internal dialogues:
1. He would have been so busy that day but still he took out some time from his busy
schedule to attend the counseling session. Thus, his mind would have been pre-
occupied by the work he had to do and the schedule which he broke.
2. He would have been more confirmed about the lawyer earlier but now after
hearing his session, he must have got confusions regarding his capabilities.
3. He would have been pre-occupied by his own problem so much so that he is not
being influenced by the lawyers counseling.

49

4. The lawyer would have tried to keep up his positivity regarding the counseling
session must have asked him to keep trusting him and he will not let him fail.

5. The lawyer must have tried to take him out of his pre-occupied mind so that his
counseling has a positive effect on the client.

Person Centered Counseling

(Straight forward narrowed down qu CarL Rogers founded 1950s)


This is based on a humanistic behavior and attitude.
This assumes that human beings are experts of themselves and that they have
access to their own 1. Innate expert resources of 2. Self-understanding and 3. Self-
direction
1. Self-assessment
i) Self-analysis
ii) Intra-personal communication
iii) Intellectual wisdom
iv) Added information and experience
2. Self-evaluation
i) Gathering much information by coming do any conclusion.
ii) Taking time to think and consider
3.
i) Interest
ii) Ambition
iii) Intellectual capacity
iv) Results and benefit

Role of counselor is to provide a facilitative environment that comprises of some


important and sufficient conditions for the client to find these resources within
themselves.
i) Psychological contact: Rapport building and mutual understanding between lawyer
and client.
ii) Counselor incongruence/vulnerability: this facilitates the Client and Lawyers to
continue with the counseling process.
iii) Counselor congruence: Both the lawyer and the client need to show their human
traits through appropriate gestures and attitude.
iv) Unconditional positive regard

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v) Empathic understanding
vi) The client should recognize in totality the unconditional positive regard and
empathic understanding of the counselor.

Importance of P.C.C.
1. This demonstrates an appreciation of indi.
2. This contains in itself the notion of self-concept: It refers to the perceptions and
beliefs that the Client holds about himself and it comprises of 3 components i)
self-esteem, ii) self-image and iii) ideal-self.
3. This approach is based on assumption that all human beings are seeking a positive
self-concept, self actualization and it is his internal motivation towards self-
fulfillment i.e. nurtured and realized.

THINK IT OUT: Explain concept of self and motivational humanistic tendencies followed in
PCC giving two examples.

Any legal argument (may be accepted rejected) may contain the following:
1. The Issue: What specifically is being debated.
2. The Rule: Which legal rule governs the issue
3. Facts: All the facts relevant to the rule.
4. Analysis: To apply the rule to the facts.
5. Conclusion: Having applied rule to the facts what is the outcome.

THINK IT OUT: Mr. XYZ drives with a very high speed from the airport to his residence.
During his rash driving, he overruns red signal and dashes the vegetable seller and PCO.
The person is now guilty of an offence. Reason out five things either in support/against
person.

CLUES:
1. As in this situation, there is no mens rea (intention). Therefore, it is case of
culpable homicide and not murder.
2. May be the vegetable seller came on the road and because of that XYZ dashed him
and then it dashed the PCO.
3. In order to save the vegetable seller, he over-run the red-signal (from wrong side).

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AREAS OF LEGAL COUNSELING


The lawyer may provide counseling on the following matters
1. Maintenance or disputes over children and undefended divorce. It is only available
for the person starting proceedings, not the respondent.

2. Conveyancing necessary to carry out a court order or following a divorce


settlement or legal separation.

3. Contested adoptions.
4. Preparing for tribunals, for example, employment tribunals (for unfair dismissal) or
unified appeal tribunals (for benefits appeals), but not representation at the
tribunal itself.

5. Help with the legal costs of making a will.


6. Medical negligence cases or cases where personal injury arises from an assault or
deliberate abuse.

7. Advice in civil law matters such as:


Bankruptcy
Consumer fraud, predatory lending matters, debt relief, contract disputes,
car repossession, credit card lawsuits, and home repair scams

Education issues involving student discipline, fees, and special education


services

Employment problems and unemployment benefits


Family law, including divorce, child custody, and child support
Landlord/tenant disputes, including eviction and repair issues
Mortgage foreclosure
Health care access, including Medicare
Public benefits, including Social Security/SSI, Medical aid, and food stamps
8. Family Law counseling may be provided by
Helping with documents
Referrals to advice counsel
Full representation in family law cases by a staff lawyer
Referral to a private lawyer who does legal aid work, if eligible
Mediation and settlement conferences.
9. Others:
Government pensions

52

Immigration
Employment insurance
Workplace safety and insurance
Workers' Compensation
Employment rights
Criminal injuries compensation
Human rights

Duty counsel is lawyers who give immediate legal assistance to low-income people
appearing in court without a lawyer. If one has a criminal or family law issue, he/she
should speak to duty counsel before the court appearance. Duty counsel can:
give advice about legal rights, obligations and the court process;
provide assistance in the courtroom for bail hearings and sentencing;
assist with diversion, guilty pleas, and adjournments.

53

CLIENT INTERVIEWING
The major basis of any client interviewing process is two:

Client
Rapport building
Lawyer trust

Client interviewing is actually a consultation between a prospective client and a lawyer,


which fosters a good repo building and trust between them so as to reach to the final
result. Therefore, it should be client-centric.

Basics of Client Interviewing:


1. There is a difference between C centric I and giving advice. Advising is a
professional function and must be kept on hold until the client is ready to hear
suggestions. A client interview facilitates the lawyer in understanding the nuances
of the case.
2. Identifying a place for interview, which is without distractions and where privacy
can be ensured.
3. Maintaining confidentiality: During Client interviewing, everything that transpires
between lawyer and client must be maintaining good communication skills
(verbal/non-verbal)
4. Listening Skills: Listening is an essential skill for C centeredness. It is must be an
active and process together with taking down important points.
5. Use of proper questioning technique: This facilitates unraveling of the hidden
facts and also encourage the client to talk and provide more information in his own
words.
6. Its importance on the part of the lawyer to structure the interview.

Importance of Client Interviewing:


1. This facilitates the lawyer to be pro-active so that he can be optimistic about the
possible outcomes.
2. It helps in gathering information so about the lawyer is well informed whether the
client is guilty/note.
3. It facilitates both Client and the lawyer to gather evidence for the particular case.
(Trying to remember and recall).
4. A Client Interviewing process also helps establishing trust and repo between client
and lawyer.

54

5. This also enables the lawyer to improve upon his knowledge. Every time he deals
with a new case or task to a new client.

How to Structure a Client Interviewing?

A lawyer needs to structure his interview very well to ensure that the client would reveal
the facts.
1. To briefly explain what will happen in the interview: This happens after the
interview date, time and place are fixed. The lawyer must emphasize that
whatever the client says in the interview will remain confidential.
2. Initial identification of the problem: The client is asked for a general description
of the problem and the relief that is desired. When the client has completed his
description of the problem, the lawyer can summarize it from the understanding
gained out of it.
3. To get a chronological overview of the problem: The lawyer needs to ask the
client for a detailed step by step chronological description of what has happened.
This can be done by probing and prompting the client with effective questioning
techniques.
4. To develop and verify theories: Based on the information obtained in the
interview, the lawyer can generate theories supporting possible legal claims. The
lawyer should consider all plausible theories and then proceed to obtain relevant
information that would support or negate a claim using each theory.
5. Small and Crisp discussion: If the lawyer feels that during some question, the
client did not respond accurately then he may try to initiate a small discussion to
develop a theory.
6. The lawyer discusses or tries to discuss to discuss the relief that the client is
seeking for.
7. Concluding the Interview: The lawyer should give the client a brief summary of
the law governing his legal rights and also the questions that must be researched
on. The lawyer needs to tell the client what he decides to do next and when would
he get back to client.

Aims of Interview:
1. Establishing an effective relationship with client.
2. Identifying the nature of clients problem.
3. Obtaining enough information from the client to reach a potential solution.

55

THINK IT OUT: Suppose you are a lawyer, a client approaches you with a problem. Write
down 10 questions that you would ask him.
1. What is your name?
2. What do you do?
3. Where are you from?
4. What is the problem?
5. Were you present at that time when the problem occurred?
6. What all things happened prior to the problem?
7. What according to you led to the problem?
8. What all took place after the problem occurred?
9. Is there any other fact which you want to tell me?
10. What relief are you seeking for?

Questions to be asked during Interview Session:

It so happens that the clients present their information in a very disorganized or


incoherent manner. So effective questioning techniques helps the lawyer to probe into
the matter about the issues raised by the client. Different types of client have a different
manner of presenting information. Therefore, much depends upon the questioning
technique followed by the lawyer and also followed by the lawyer and also his smartness
in eliciting information. This helps the lawyer with more and accurate information and
provides the client with full and informed advice so that a right decision can be taken and
that it could be acted upon. The following types of questions are helpful in getting more
information from client:
1. Open ended questions: This type of questions reflects the wider mind scope of
client. By answering these questions, the client tries to talk freely and also discuss
all the aspects of the problem subjectively.
Restriction of client
Inability to express
Eg. The lawyer can prompt the client by asking him question like
1. Explain or narrate what all you witnessed.
2. What happened next?
3. What was the reaction of the general public and also the women and
children in particular?

56

2. Narrow Questions: These types of questions are narrowed down question of a


wider subject. These questions stimulate the clients memory and he tries to
answer more objectively. The questions are also very specific and focused.
i) What impact did the incident have on your child?
ii) Do you think the incident had a psychological impact including fear in the
office employees?
3. Leading Questions: These questions suggest an answer and may sometimes prove
to be a risk factor in distorting clients answers. Lawyers question: - Are
multitude of clues in themselves. Therefore, they can be used to obtain
information from the client, who is initially reluctant to answer.
I guess you have had trouble with police before.
4. Mirroring Questions:
i) Define yourself.
It mirrors you in front of lawyer.
These questions are reflecting in nature and with these questions, the
lawyer tries to introspect and find out what exactly happened and what the
client wants all from (all from the Cs perspective).
This helps the lawyer to understand the nature of the client, his identity
and personality and also the crystal clear image of what the client desires.
ii) Tell me what happened when you reached home at 7 PM in evening? What
did you see?

IMPORTANCE OF LISTENING DURING CLIENT INTERVIEWING:

Listening: Can be of two types

Active Passive

Listening with Listening but with less/no


Understanding + understanding. Poor/no of and
feed back and response unable to deliberate and
response + ability discuss good symptoms to recall
to discuss and and remember.
deliberate

Importance of Lawyer in Client Interview:


1. A lawyer is considered to be the most significant form of lawyer during client
interview.
2. An interviewing process involves a two way interaction or communication.
57

3. Client interviewing should be empathic.


4. Client interviewing should be another form of reflective thinking because it points
out and reflects back to the client some aspect of their emotional states.
5. Client interviewing should also be a form of cognitive thinking and response
because it helps understand those, who are under stress or are cognitively
impaired.
6. Client interviewing is necessary when some emotional content is found in a clients
questions or statements. The lawyer tries to distill that and reflect it back to the
client in the form of a short question or sentence.
7. Every time you listen to client do not make a declarative statement rather try to
make tentative statements.
8. A Lawyer should create a hypothesis in the mind of the listener. The listener may
work out on this hypothesis and gather evidence for the same.
9. Symptoms: A Lawyer may be experimental. Eg. In making a hypothesis about what
the client feels, the listener must wait to hear what client says and also
understand the order of the data presented.
10. The lawyer must wait for the confirmation of interpretation and also the
clarification from client.
11. A Lawyer should try to make client interviewing a process to build rapport and
trust and also foster to way easy interaction.
12. Personalised Listening occurs when the lawyer simply listens to what client is
speaking but he may not be paying attention to non-verbal behavior of client.
13. A good Personalised Listening helps in remembering and recalling things especially
when small gestures or powerful words may go unnoticed by public at large but
may be understood by you.

Ethical considerations during Client Interview:


1. Talk to client directly and not all his companions.
2. Try to ethical rapport and trust with client.
3. Keep client informed about the laws
4. Make sure that client understands you and that he is very comfortable talking to
you.
5. Do not be very authoritative and strict disciplinarian rather try to show/prove that
you are trying to help client.
6. Create an effective work environment.
7. Make sure that there is a minimal interruption.
58

8. Encourage client to put forward his/her perceptions.


9. Be an A.L. and good communicator (both verbal and non-verbal).
10. Reflect on what you are being told by the client both by question and paraphrasing.
11. Try to question more deeply to ethical salient facts to check the relevant content
and also so clarify ambiguities.
12. Allow client to task question, clear his doubt and express his anxiety.
13. Outline all options avail both legal and non-legal.
14. Help the client in making an informal/informed choice of action.
15. Do not hesitate to seek advice and instructions from seniors.
16. Be confirmed that client agrees to the course of action and that he would remain
by the side of lawyer till judgment declared.
17. Respect attitude and ideology of client.
18. Try to maintain all facts and data in a properly documented fashion.
19. Talk freely to client about the time you will need to gather evidence and other
time constraints.
20. Regularly inform client about progress of case.
21. With respect to witnesses, instruct client not to discuss the case other to obtain
name, addresses and phone number.
22. The lawyer should himself emotionally and intellectually by enhancing knowledge
and being positive.
23. During the conversations/interview, let the client know that everything discussed
with him will remain confidential to you.

Report Formation after a Client Interview:


1. Commentary (what you understood as a professional/person). Detailed note on
who the client is, the story he narrates and the claim he is seeking for in your own
words.
2. Details about the client: Personal and Professional
Name
Address
Contact details
Phone
Email
3. Circumstances under which the incident/accident took place
Or
General nature of the case.
59

4. Defense under law.


5. Claims
6. Evidence and witnesses

60

LEGAL REASONING
Legal reasoning refers to the nature of interpreting existing laws. Legal reasoning provides
a platform which enables people of different beliefs and also worldviews to arbitrate their
differences in a manner that is acceptable to all. As a result, decisions are mainly seen as
being legitimate in a pluralistic society.

Therefore, Legal reasoning would consist of the following:

All legal reasoning follows one path. No legal argument can be accepted or rejected
without all of the following pieces:
1) Issue: What specifically is being debated?
2) Rule: What legal rule governs this issue?
State the Rule
Cite the Rule
3) Facts: What are the facts relevant to this Rule?
4) Analysis: Apply the rule to the facts.
5) Conclusion: Having applied the rule to the facts, what's the outcome?

The three forms of Legal Reasoning are:


1. Deductive Reasoning:
a) That provides a conclusion by means of two other propositions.
b) By far, it has been the most frequent used form of reasoning conclusions
under the law.
2. Inductive generalization:
a) Arriving at sweeping generalizations based upon a smaller more discrete
event.
3. Analogy: The comparison of two different things to bring out conclusions of both
the elements.

Legal reasoning is the way lawyers and judges talk publicly about the law. This legal
language gives us the tools to tell the difference between impartial and partisan legal
decisions. Legal reasoning also provides a language tool, which enables people of different
beliefs and worldviews to arbitrate their differences in a way that is acceptable to all,
resulting in decisions that are seen as legitimate in a pluralistic society.

61

Legal reasoning matters, because it is the means by which judges can convince us of their
integrity. Even though we disagree with the decision we may not disagree with the way
the decision was made.
1. Law is a language that lawyers and judges use when they try to prevent or resolve
problems of human conflict by using official rules made by the state as their
starting point.
2. Civil and criminal trials are not so much legal reasoning as they are a type of
historical research to determine facts. That is why we give this function to
amateurs or juries.
3. Legal reasoning is what judges do to justify their decision when they cannot
demonstrate that they have reached the right answer. It is an attempt to persuade
us what the law ought to mean.
4. When a judge reasons well all four elements harmonize or fit together. A judge
reasons poorly, and is less persuasive that he has been impartial, if one or more of
the elements does not harmonize with the others.
5. Elements of Legal Reasoning.
Elements Definition Issue Decision
Did the Judge follow
Testimony as to what No Poor Reasoning.
the facts as
1. Case happened that is Yes Good Judge is not persuasive
established in the
Facts preserved as evidence in Reasoning that he arrived at his
trial, or did he ignore
a trial. decision fairly.
them?
How we believe the Did the Judge give
Yes Good
2. Social world works. The facts, due recognition to No. Judge lives on
Reasoning.
Background conditions, events that facts that we observe another planet and only
Reflects
Facts we observe as to how the on how the world commutes to Earth.
reality.
world works. works.
Uses the official legal Did the Judge read Yes. Good
No. Authority for the
3. Rules of texts in their hierarchy of the texts correctly authority
decision is not
Law value that are intended and use them in their for the
creditable.
for cases like this proper hierarchy. decision
4. Widely
A due recognition that Did the Judge follow Yes. No. Decision is contrary
Share
some things are right and the community's Decision to the accepted moral
Moral
some things are wrong as consensus about fits moral code of the community.
Values and
acceptable social moral values and code of Therefore it is not what
Social
behavior social principles community the law ought to be.
Principles

6. Legal reasoning is confronted with the problem of particular justice, what is right
for this case, with general justice, the principle that must decide the case, if it is
to be a rule of law that has general applicability. Which do you prefer to have
government by special rules or general rules? General rules you can be sure of.
Special rules you can never know or be sure of. If you cannot know the rule, then

62

you cannot plan your affairs. So it is not the case that you cannot do right without
doing wrong. Unless you refuse to accept the temporal consequences of doing right
which is to follow the general rule.

There are thus three things (at least, there may be others) which legal theorists could
mean by legal reasoning: (a) reasoning to establish the existing content of the law on a
given issue, (b) reasoning from the existing content of the law to the decision which a
court should reach in a case involving that issue which comes before it, and (c) reasoning
about the decision which a court should reach in a case, all things considered.

This means that, according to Dworkin, when judges reason about the law in sense (b),
what they are doing amounts to no more nor less than reasoning about the law in sense
(a), i.e. reasoning to establish the content of the law (see Dworkin 1977 and 1986).

For Raz, legal institutions claim to express binding and authoritative judgments regarding
what ought to be done which are designed to allow people to better conform to reason if
they follow the decisions of the authority than if they try to follow those other reasons
which apply to them directly (see Raz 1994, ch.10). In deciding cases according to law,
then, we have a responsibility to try to establish the existence and meaning of any
purportedly authoritatively binding legal rules which have a bearing on the situation under
consideration, and we do so by interpreting the decisions of law-making institutions in a
way which accords with the intentions of those institutions in making the decisions in
question. For Raz, then, it is the authoritative nature of law which explains why legal
reasoning is interpretive, whereas, for example, moral reasoning is not. Law, unlike
morality, stems from social sources (on the role of social sources in understanding law, see
Raz 1979 and the entry on legal positivism), from institutions issuing purportedly
authoritative directives which claim to express a binding judgment about what ought to be
done. Part of our task in reasoning about the law is thus to establish the existence and
meaning of those directives, and, in order to do so, we must interpret the decisions of
law-making institutions in accordance with the intentions of the law-makers in order to try
to establish the content and meaning of the law which they intended to make (see also
Raz 1996a and 1996b).

According to Dworkin, the view that law is to be identified by reference to authoritative


social sources yields a grossly inadequate account of the argumentative nature of legal
practice, and of the nature and depth of disagreement within it (see Dworkin 1986 ch.1).
He contends that an adequate account of these features of legal practice can only be
63

gained when we understand that law is an interpretive concept, i.e. that it is a social
practice wherein a certain interpretive attitude has taken hold. The attitude in question
comprises two components: the assumption that the practice does not merely exist, but
has a purpose or point, and the further assumption that the rules of the practice are not
necessarily what they have always been taken to be, but rather are sensitive to, and can
be revised in light of, its point (Dworkin 1986 ch.2; also, the entry on interpretivist
theories of law). For Dworkin, then, it is these features of the social practice of law: that
members of that practice dispute and disagree about what the best interpretation of the
rules of the practice are, in light of its point, which dictate that legal reasoning is
necessarily interpretive. Once the interpretive attitude has taken hold amongst the
participants in a social practice, the only way to understand it adequately is to do as the
participants in that practice do: i.e. join the practice and make the same kind of
interpretive claims concerning the point of the practice, and what the rules of it are in
light of that point, as they do. For Dworkin, this point holds good for the activities of
judges and legal theorists alike: anyone reasoning about the law is required to treat it as
an interpretive social practice and offer interpretations of what it requires in light of the
purpose or point which they assign to it.

64

LEGAL REASONING
Aristotle: Logic

Aristotelian logic, after a great and early triumph, consolidated its position of influence to
rule over the philosophical world throughout the Middle Ages up until the 19th Century. All
that changed in a hurry when modern logicians embraced a new kind of mathematical
logic and pushed out what they regarded as the antiquated and clunky method of
syllogisms. Although Aristotles very rich and expansive account of logic differs in key
ways from modern approaches, it is more than a historical curiosity. It provides an
alternative way of approaching logic and continues to provide critical insights into
contemporary issues and concerns. The main thrust of this article is to explain Aristotles
logical system as a whole while correcting some prominent misconceptions that persist in
the popular understanding and even in some of the specialized literature. Before getting
down to business, it is important to point out that Aristotle is a synoptic thinker with an
over-arching theory that ties together all aspects and fields of philosophy. He does not
view logic as a separate, self-sufficient subject-matter, to be considered in isolation from
other aspects of disciplined inquiry. Although we cannot consider all the details of his
encyclopedic approach, we can sketch out the larger picture in a way that illuminates the
general thrust of his system. For the purposes of this entry, let us define logic as that
field of inquiry which investigates how we reason correctly (and, by extension, how we
reason incorrectly). Aristotle does not believe that the purpose of logic is to prove that
human beings can have knowledge. (He dismisses excessive scepticism.) The aim of logic
is the elaboration of a coherent system that allows us to investigate, classify, and evaluate
good and bad forms of reasoning.

The Organon

To those used to the silver tones of an accomplished writer like Plato, Aristotles prose
will seem, at first glance, a difficult read. What we have are largely notes, written at
various points in his career, for different purposes, edited and cobbled together by later
followers. The style of the resulting collection is often rambling, repetitious, obscure,
and disjointed. There are many arcane, puzzling, and perhaps contradictory passages.
This problem is compounded by the abstract, technical vocabulary logic sometimes
requires and by the wide-ranging scope and the scattered nature of Aristotles
observations. Some familiarity with Greek terminology is required if one hopes to capture
the nuances in his thought. Classicists and scholars do argue, of course, about the precise
Greek meaning of key words or phrases but many of these debates involve minor points of
65

interpretation that cannot concern us here. Aristotles logical vocabulary needs to be


understood within the larger context of his system as a whole. Many good translations of
Aristotle are available. (Parenthetical citations below include the approximate Bekker
number (the scholarly notation for referring to Aristotelian passages according to page,
column, and line number of a standard edition), the English title of the work, and the
name of the translator.)

Ancient commentators regarded logic as a widely-applicable instrument or method for


careful thinking. They grouped Aristotles six logical treatises into a sort of manual they
called the Organon (Greek for tool). The Organon included the Categories, On
Interpretation, the Prior Analytics, the Posterior Analytics, the Topics, and On Sophistical
Refutations. These books touch on many issues: the logical structure of propositions, the
proper structure of arguments (syllogisms), the difference between induction and
deduction, the nature of scientific knowledge, basic fallacies (forms
of specious reasoning), debating techniques, and so on. But we cannot confine our
present investigations to the Organon. Aristotle comments on the principle of non-
contradiction in the Metaphysics, on less rigorous forms of argument in the Rhetoric, on
the intellectual virtues in the Nicomachean Ethics, on the difference between truth and
falsity in On the Soul, and so on. We cannot overlook such important passages if we wish
to gain an adequate understanding of Aristotelian logic.

Kinds of Propositions

Aristotle suggests that all propositions must either affirm or deny something. Every
proposition must be either an affirmation or a negation; it cannot be both. He also points
out that propositions can make claims about what necessarily is the case, about
what possibly is the case, or even about what is impossible. His modal logic, which deals
with these further qualifications about possibility or necessity, presents difficulties of
interpretation. We will focus on his assertoric (or non-modal) logic here. Still, many of
Aristotles points about necessity and possibility seem highly intuitive. In one famous
example about a hypothetical sea battle, he observes that the necessary truth of a mere
proposition does not trump the uncertainty of future events. Because it is necessarily true
that there will be or will not be a sea battle tomorrow, we cannot conclude that either
alternative is necessarily true. (De Interpretatione, 9.19a30ff.) So the necessity that
attaches to the proposition there will or will not be a sea battle tomorrow does not
transfer over to the claim that there will be a sea battle tomorrow or to the claim
there will not be a sea battle tomorrow. Aristotle goes out of his way to emphasize the
66

point that our personal beliefs about what will happen in the future do not determine
whether the individual propositions are true. (Note that we must not confuse the
necessary truth of a proposition with the necessity that precipitates the conclusion of a
deductively-valid argument. The former is sometimes called material, non-logical, or
metaphysical necessity; the later, formal, deductive, or logical necessity. We
discuss these issues further below.)

Aristotle claims that all propositions can be expressed using the


Subject copula Predicate formula and that complex propositions are, on closer
inspection, collections of simpler claims that display, in turn, this fundamental structure.
Having fixed the proper logical form of a proposition, he goes on to classify different kinds
of propositions. He begins by distinguishing between particular terms and universal
terms. (The term he uses for universal is the Greek katholou.) Particular terms refer
to individual things; universal terms refer to groups of things. The name Socrates is a
particular term because it refers to a single human being; the word spiders is a universal
term for it universally applies to all members of the group spiders. Aristotle realizes, of
course, that universal terms may be used to refer to parts of a group as well as to entire
groups. We may claim that all spiders have eight legs or that only some spiders have
book-lungs. In the first case, a property, eight-leggedness, is predicated of the entire
group referred to by the universal term; in the second case, the property of having book-
lungs is predicated of only part of the group. So, to use Aristotelian language, one may
predicate a property universally or not universally of the group referred to by a universal
term.

This brings us to Aristotles classification of the four different kinds of categorical


propositions (called categorical propositions because they assert a relationship between
two categories or kinds). Each different categorical proposition
possesses quantity insomuch as it represents a universal or a particular predication
(referring to all or only some members of the subject class). It also possesses a definite
quality (positive or negative) insomuch as it affirms or denies the specified predication.
The adjectives all, no, and some (which is understood as meaning at least one)
determine the quantity of the proposition; the quality is determined by whether the verb
is in the affirmative or the negative. Rather than going into the details of Aristotles
original texts, suffice it to say that contemporary logicians generally distinguish between
four logical possibilities:

67

1. Universal Affirmation: All S are P (called A statements from the Latin,


AFFIRMO: I affirm).
2. Universal Negation: No S are P (called E statements from NEGO: I deny).
3. Particular Affirmation: Some S are P (called I statements from AFFIRMO).
4. Particular Negation: Some S are not P (called O statements from NEGO).

Note that these four possibilities are not, in every instance, mutually exclusive. As
mentioned above, particular statements using the modifier some refer to at least
one member of a group. To say that some S are P is to say that at least one S is P; to
say that some S are not P is to say that at least one S is not P. It must follow then (at
least on Aristotles system) that universal statements require the corresponding particular
statement. If All S are P, at least one S must be P; that is, the particular statement
Some S are P must be true. Again, if No S are P, at least one S must not be P; that is,
the particular statement Some S are not P must be true. (More on this, with
qualifications, below.) Note also that Aristotle treats propositions with an individual
subject such as Socrates is wise as universal propositions (as if the proposition was
saying something like all instances of Socrates are wise.) One caveat: Although we
cannot linger on further complications here, keep in mind that this is not the only way to
divide up logical possibility.

Square of Opposition

Aristotle examines the way in which these four different categorical propositions are
related to one another. His views have come down to us as the square of opposition, a
mnemonic diagram that captures, systematizes, and slightly extends what Aristotle says
in De Interpretatione. (Cf. 6.17a25ff.)

As it turns out, we can use a square with


crossed interior diagonals (Fig. 1 above) to
identify four kinds of relationships that
hold between different pairs of categorical
propositions. Consider each relationship in
turn:

1) Contradictory propositions possess


opposite truth-values. In the
diagram, they are linked by a diagonal line. If one of two contradictories is true,
the other must be false, and vice versa. So the A proposition (All S are P) and the
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O proposition (Some S are not P) are contradictories. Clearly, if it is true that all
S are P, then the O statement that some S are not P must be false. And if it is
true that some S are not P, then the A statement that all S are P must be
false. The same relationship holds between E (No S are P) and I (Some S are P)
propositions. To use a simple example: If it is true that all birds lay eggs, then it
must be false that some birds do not lay eggs. And if it is true that some birds
do not fly, then it must be false that all birds fly.

2) Contrary propositions cannot both be true. The top horizontal line in the square
joining the A proposition (All S are P) to the E proposition (No S are P) represents
this logical relationship. Clearly, it cannot be true that all S are P and that no S
are P. The truth of one of these contrary propositions excludes the truth of the
other. It is possible, however, that both statements are false as in the case where
some S are P and some (other) S are not P. So, for example, the statements all
politicians tell lies and no politicians tell lies cannot both be true. They will,
however, both be false if it is indeed the case that some politicians tell lies
whereas some do not.

3) The relationship of sub-alternation results when the truth of a universal


proposition, the superaltern, requires the truth of a second particular
proposition, the subaltern. The vertical lines moving downward from the top to
the bottom of the square in the diagram represent this condition. Clearly, if all
members of an existent group possess (or do not possess) a specific characteristic,
it must follow that any smaller subset of that group must possess (or not possess)
that specific characteristic. If the A proposition (All S are P) is true, it must follow
that the I proposition (Some S are P) must be true. Again, if the E proposition
(No S are P) is true, it must follow that the O proposition (Some S are not P) must
be true. Consider, for example, the statement, all cheetahs are fast. If every
member of the whole group of cheetahs is fast, then it must be the case that at
least one member of the group of cheetahs is fast; that is, the statement some
cheetahs are fast must be true. And, to reformulate the same example as a
negation, if it is true that no cheetahs are slow, then it must be the case that at
least one member of the group of cheetahs is not slow; that is, the statement
some cheetahs are not slow must be true.

Note that sub-alternation does not work in the opposite direction. If Some S are
P, it need not follow that All S are P. And if Some S are not P, it need not
follow that No S are P. We should also point out that if the subaltern is false, it
69

must follow that the superaltern is false. If it is false to say that Some S are P, it
must be false to say that All S are P. And if it is false to say that Some S are
not P, it must be false to say that No S are P.

4) Sub-contrary propositions cannot both be false. The bottom horizontal line in the
square joining the I proposition (Some S are P) to the O proposition (Some S are not
P) represents this kind of sub-contrary relationship. Keeping to the assumptions
implicit in Aristotles system, there are only three possibilities: (1) All S have
property P; in which case, it must also be true (by sub-alternation) that some S
are P. (2) No S have property P; in which case it must also be true (by sub-
alternation) that some S are not P. (3) Some S have and some S do not have
property P; in which case it will be true that some S are P and that some S are
not P. It follows that at least one of a pair of sub-contrary propositions must be
true and that both will be true in cases where P is partially predicated of S. So,
for example, both members of the sub-contrary pair some men have beards and
some men do not have beards are true. They are both true because having a
beard is a contingent or variable male attribute. In contrast, only one member of
the sub-contrary pair some snakes are legless and some snakes are not legless
is true. As all snakes are legless, the proposition some snakes are not legless
must be false.

Traditional logicians, inspired by Aristotles wide-ranging comments, identified a series of


immediate inferences as a way of deriving new propositions through a routine
rearrangement of terms. Sub-alternation is an obvious example of immediate inference.
From All S are P we can immediately inferthat is, without argumentthat some S are
P. They also recognized conversion, obversion, and contraposition as immediate
inferences.

In conversion, one interchanges the S and P terms. If, for example, we know that No S is
P, we can immediately infer that No P is S. (Once we know that no circles are
triangles, we know right away that no triangles are circles.).

In obversion, one negates the predicate term while replacing it with the predicate term of
opposite quality. If, for example, we know that Some S are P, we can immediately infer
the obverse, Some S are not non-P. (Once we know that some students are happy, we
know right away that some students are not unhappy.).

70

Finally, in contraposition, one negates both terms and reverses their order. If, for
example, we know that All S are P, we can infer the contra-positive All non-P are non-
S. (Once we know that all voters are adults, we know right away that all children are
unable to vote.) More specific rules, restrictions, and details are readily available
elsewhere.

Deduction versus Induction

We cannot fully understand the nature or role of inductive syllogism in Aristotle without
situating it with respect to ordinary, deductive syllogism. Aristotles distinction
between deductive and inductive argument is not precisely equivalent to the modern
distinction. Contemporary authors differentiate between deduction and induction in
terms of validity. (A small group of informal logicians called Deductivists dispute this
account.) According a well-worn formula, deductive arguments are valid; inductive
arguments are invalid. The premises in a deductive argument guarantee the truth of the
conclusion: if the premises are true, the conclusion must be true. The premises in an
inductive argument provide some degree of support for the conclusion, but it is possible to
have true premises and a false conclusion. Although some commentators attribute such
views to Aristotle, this distinction between strict logical necessity and merely probable or
plausible reasoning more easily maps onto the distinction Aristotle makes between
scientific and rhetorical reasoning (both of which we discuss below). Aristotle views
inductive syllogism as scientific (as opposed to rhetorical) induction and therefore as a
more rigorous form of inductive argument.

We can best understand what this amounts to by a careful comparison of a deductive and
an inductive syllogism on the same topic. If we reconstruct, along Aristotelian lines, a
deduction on the longevity of bileless animals, the argument would presumably run: All
bileless animals are long-lived; all men, horses, mules, and so forth, are bileless animals;
therefore, all men, horses, mules, and so forth, are long-lived. Defining the terms in this
syllogism as: Subject Term, S=men, horses, mules, and so forth; Predicate Term, P=long-
lived animals; Middle Term, M=bileless animals, we can represent this metaphysically
correct inference as: Major Premise: All M are P. Minor Premise: All S are M. Conclusion:
Therefore all S are P. (Barbara.) As we already have seen, the corresponding induction
runs: All men, horses, mules, and so forth, are long-lived; all men, horses, mules, and so
forth, are bileless animals; therefore, all bileless animals are long-lived. Using the same
definition of terms, we are left with: Major Premise: All S are P. Minor Premise: All S are
M (convertible to All M are S). Conclusion: Therefore, all M are P. (Converted to
71

Barbara.) The difference between these two inferences is the difference between
deductive and inductive argument in Aristotle.

Clearly, Aristotelian and modern treatments of these issues diverge. As we have already
indicated, in the modern formalism, one automatically defines subject, predicate, and
middle terms of a syllogism according to their placement in the argument. For Aristotle,
the terms in a rigorous syllogism have a metaphysical significance as well. In our correctly
formulated deductive-inductive pair, S represents individual species and/or the individuals
that make up those species (men, horses, mules, and so forth); M represents the deep
nature of these things (bilelessness), and P represents the property that necessarily
attaches to that nature (longevity). Here then is the fundamental difference between
Aristotelian deduction and induction in a nutshell. In deduction, we prove that a property
(P) belongs to individual species (S) because it possesses a certain nature (M); in induction,
we prove that a property (P) belongs to a nature (M) because it belongs to individual
species (S). Expressed formally, deduction proves that the subject term (S) is associated
with a predicate term (P) by means of the middle term (M); induction proves that the
middle term (M) is associated with the predicate term (P) by means of the subject term
(S). (Cf. Prior Analytics, II.23.68b31-35.) Aristotle does not claim that inductive syllogism
is invalid but that the terms in an induction have been rearranged. In deduction, the
middle term joins the two extremes (the subject and predicate terms); in induction, one
extreme, the subject term, acts as the middle term, joining the true middle term with the
other extreme. This is what Aristotle means when he maintains that in induction one uses
a subject term to argue to a middle term. Formally, with respect to the arrangement of
terms, the subject term becomes the middle term in the argument.

Aristotle distinguishes then between induction and deduction in three different ways.
First, induction moves from particulars to a universal, whereas deduction moves from a
universal to particulars. The bileless induction moves from particular species to a
universal nature; the bileless deduction moves from a universal nature to particular
species. Second, induction moves from observation to language (that is, from sense
perception to propositions), whereas deduction moves from language to language (from
propositions to a new proposition). The bileless induction is really a way of demonstrating
how observations of bileless animals lead to (propositional) knowledge about longevity;
the bileless deduction demonstrates how (propositional) knowledge of a universal nature
leads (propositional) knowledge about particular species. Third, induction identifies
or explains a nature, whereas deduction applies or demonstrates a nature. The bileless

72

induction provides an explanation of the nature of particular species: it is of the nature of


bileless organisms to possess a long life. The bileless deduction applies that finding to
particular species; once we know that it is of the nature of bileless organisms to possess a
long life, we can demonstrate or put on display the property of longevity as it pertains to
particular species.

One final point needs clarification. The logical form of the inductive syllogism, after the
convertibility maneuver, is the same as the deductive syllogism. In this sense, induction
and deduction possess the same (final) logical form. But, of course, in order to
successfully perform an induction, one has to know that convertibility is possible, and this
requires an act of intelligence which is able to discern the metaphysical realities between
things out in the world. We discuss this issue under non-discursive reasoning below.

The Inductive-Deductive Method of


Aristotelian Science

Aristotle views science as a search for


causes (aitia). In a well-known example
about planets not twinkling because they
are close to the earth (Posterior
Analytics, I.13), he makes an important
distinction between knowledge of the
fact and knowledge of the reasoned
fact. The rigorous scientist aims at knowledge of the reasoned fact which explains why
something is the way it is. In our example, sap-coagulation is the cause of deciduous;
deciduous is not the cause of sap-coagulation. That is why sap-coagulation is featured
here as the middle term, because it is the cause of the phenomenon being investigated.
The deduction All sap-coagulators are deciduous; all broad-leaved trees are sap-
coagulators; therefore, all broad-leaved trees are deciduous counts as knowledge of the
reasoned fact because it reveals the cause of broad-leafed deciduousness.

Aristotle makes a further distinction between what is more knowable relative to us and
what is more knowable by nature (or in itself). He remarks in the Physics, The natural
way of [inquiry] is to start from the things which are more knowable and obvious to us and
proceed towards those which are clearer and more knowable by nature; for the same
things are not knowable relatively to us and knowable without qualification.
(I.184a15, Hardie, Gaye.) In science we generally move from the effect to the cause,

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from what we see and observe around us to the hidden origins of things. The outward
manifestation of the phenomenon of deciduousness is more accessible to us because we
can see the trees shedding their leaves, but sap-coagulation as an explanatory principle is
more knowable in itself because it embodies the cause. To know about sap-coagulation
counts as an advance in knowledge; someone who knows this knows more than someone
who only knows that trees shed their leaves in the fall. Aristotle believes that the job of
science is to put on display what best counts as knowledge, even if the resulting theory
strays from our immediate perceptions and first concerns.

Jan Lukasiewicz, a modern-day pioneer in term logic, comments that some queer
philosophical prejudices which cannot be explained rationally made early commentators
claim that the major premise in a syllogism (the one with the middle and predicate terms)
must be first. (Aristotles Syllogistic, 32.) But once we view the syllogism within the
larger context of Aristotelian logic, it becomes perfectly obvious why these early
commentators put the major premise first: because it constitutes the (ostensible)
definition; because it contains an explanation of the nature of the thing upon which
everything else depends. The major premise in a scientific deduction is the most
important part of the syllogism; it is scientifically prior in that it reveals the cause that
motivates the phenomenon. So it makes sense to place it first. This was not an irrational
prejudice.

Fallacies

In a short work entitled Sophistical Refutations, Aristotle introduces a theory of logical


fallacies that has been remarkably influential. His treatment is abbreviated and
somewhat obscure, and there is inevitably scholarly disagreement about precise exegesis.
Aristotle thinks of fallacies as instances of specious reasoning; they are not merely errors
but hidden errors. A fallacy is an incorrect reasoning strategy that gives the illusion of
being sound or somehow conceals the underlying problem. Aristotle divides fallacies into
two broad categories: those which depend on language (sometimes called verbal fallacies)
and those that are independent of language (sometimes called material fallacies). There
is some scholarly disagreement about particular fallacies, but traditional English names
and familiar descriptions follow. Linguistic fallacies include: homonymy (verbal
equivocation), ambiguity (amphiboly or grammatical equivocation), composition (confusing
parts with a whole), division (confusing a whole with parts), accent (equivocation that
arises out of mispronunciation or misplaced emphasis) and figure of speech (ambiguity
resulting from the form of an expression). Independent fallacies include accident
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(overlooking exceptions), converse accident (hasty generalization or improper


qualification), irrelevant conclusion, affirming the consequent (assuming an effect
guarantees the presence of one possible cause), begging the question (assuming the
point), false cause, and complex question (disguising two or more questions as one).
Logicians, influenced by scholastic logic, often gave these characteristic mistakes Latin
names: composition for composition, division for division, secundum quid et
simpliciter for converse accident, ignoranti enlenchi for non-relevant conclusion,
and petitio principii for begging the question.

In his Introduction to Legal Reasoning, Edward Levi attempts to describe the essential
features of the judicial process as he sees it operating in the field of American case law
and in the interpretation of statutes and constitutional provisions. With respect to case
law, the characteristic mode of argumentation used by the courts in this area is, in his
opinion, reasoning by example.
It is a three-step process described by the doctrine of precedent in which a
proposition descriptive of the first case is made into a rule of law and then
applied to a next similar situation. The steps are these: similarity is seen
between cases; next the rule of law inherent in the first case is announced;
then the rule of law is made applicable to the second case.

Levi points out that the rule of law inherent in the first case is not necessarily or even
typically the rule of law announced by the judge in that case. It is disturbing to find, he
declares, that the rules change from case to case and are remade with each case. This
change in the rules, Levi believes, is the indispensable dynamic element in the growth of
the law.
Where case law is considered, and there is no statute, he [the judge in the
second case] is not bound by the statement of the rule of law made by the
prior judge even in the controlling case. The statement is mere dictum, and
this means that the judge in the present case may find irrelevant the
existence or absence of facts which prior judges thought important. It is not
what the prior judge intended that is of any importance; rather it is what
the present judge, attempting to see the law as a fairly consistent whole,
thinks should be determining classification.

Edward H. Levi addresses processes of legal reasoning the court uses relating to case,
statutory, and constitutional law. For each area, he explains the reasoning process in
general and then follows up each overview with involved real-world example of evolution
of interpretation. In his analyses, it becomes evident that legal reasoning is in a distinct
class with its own rules, seeking historical consistency while inevitably following social
sentiment. In many ways its methods cannot strictly be called logical. In some cases such
reasoning seems inexcusable, were it not for the fact that over time it seems to work.
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Levi sees case law as progressing in three stages: "similarity is seen between cases; next
the rule of law inherent in the first case is announced; then the rule of law is made
applicable to the second case". This amounts to "reasoning by example", and Levi gives
specific instances of cases involving liability from dangerous objects to trace the evolution
of the very concept of an inherently dangerous object and its applicability. In the end,
"the adoption of an idea by a court reflects the power structure of the community".

Levi's point is that in early cases a decision is made without regard to all-encompassing
principlesor, if such principles are implied, they are inevitably short-sighted. It is
through future cases that such principles are discovered and refined and eventually
applied to even later cases. Through this processes, most recent cases may be decided
using completely separate rules than those used in the early cases.

Such a process seems similar to the evolution of scientific theories: early theories such as
that of omnipresent "ether" attempted to explain the propogation of light, until later
discoveries and situations called for new theories to encompass new findings. Newer
theories are therefore more far-reaching, making older ones redundant in most casesor
even contradict them.

When determining similarity of difference among cases in order to establish rules, Levi
claims that a judge "is not bound by the statement of the rule of law made by the prior
judge even in the controlling case. The statement is mere dictum, and this means that the
judge in the present case may find irrelevant the existence or absence of facts which prior
judges through important). In this way, new rules can be made to replace old, although
Levi does not make it clear what leeway a judge has in creating rules that contradict
previous decisions that make up the precedent.

Levi's statement that the judge's "statement [of the rule] is mere dictum" seems odd to the
novice, because when briefing a case a student of the law is led to believe that the very
rule is precisely what is not dicta. Perhaps Levi is meaning to stress that while a particular
rule might be essential to the decision, the rule remains implicit in the decision and
therefore open to future reconstructionthe judge's statement concerning the rule is
therefore separate from the rule itself and therefore dictum. Alternatively, Levi could
simply be relegating the statement of rule to a lower status than the facts of the case in
case comparison.

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In describing the process of reasoning by example, Levi recalls Derrida and other linguistic
philosophers who claim that meaning is found not in words, but by their usage, which
immediately changes any set meaning one might erroneously assume the word to have.
"[R]easoning by example will operate to change the idea after it has been adopted", Levi
says. "[T]he kind of reasoning involved in the legal process is one in which the
classification changes as the classification is made". For the induction-like reasoning used
in reasoning by example, "the general finds its meaning in the relationship between the
particulars".

Levi next examines the interpretation of statutory law, rules that have been created by
legislatures, and finds that their meanings are never unambiguous. For legislation, a judge
is to some extent forever tied to the wording of the statute, however vague. I this sense,
"courts are less free in applying a statue than in dealing with case law". As Levi's examples
show, however, this restriction has some room for modification not only through the
limitation of language but also through the process by which legislation is enacted.

He traces the social process a statute goes through during its creation, pointing out that
political climates, compromises, and conclusions mean that looking at the context of a law
might not always clear up ambiguitiesliteral language might have indeed been used
precisely to allow opposition that disagreed with the intent of the writer of the
legislation. "[W]hat the legislature intended is ambiguous. In a significant sense there is
only a general intent which preserves as much ambiguity in the concept used as though it
had been created by case law".

But likewise similar to legislation, "a written constitution must be enormously ambiguous
in its general provisions." This means that "If there has been an incorrect interpretation of
the words, an amendment would come close to repeating the same words. What is desired
is a different emphasis, not different language. This is tantamount to saying that what is
required is a different interpretation rather than an amendment." The result is that
"constitutional interpretation cannot be as consistent as case-law development or the
application of statutes. The development proceeds in shifts; occasionally there are abrupt
changes in direction".

The ambiguity of a constitution does mean that the creation of principles are necessary
for interpretation, as with case law. Using the commerce clause of the Constitution (which
was shown earlier to be relevant in the interpretation of the White Slave Traffic Act) Levi
shows how its interpretation has lurched and shifted as it was applied to different
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situations. "The simple and ambiguous commerce clause was thus interpreted by made up
concepts of equal stature: direct as against indirect; transportation, a current, a flow as
against local manufacture". As with the created category of inherently dangerous object in
the case law examples, the commerce clause caused the fabrication of "illicit articles",
leading to the concept of "anticipated evil", interacting with such concepts as "local
production".

Therefore, "Legal reasoning has a logic of its own", inherently reflecting social theories
and changes in society. Legal reasoning is imperfect, but Levi finds it necessary for
progress in this area in which there are real disagreementsin his mind, it is the only
method that could work.

Aristotelian Logic

The Prior Analytics or Analytica Priora is Aristotles work on deductive reasoning, which is
known as his syllogistic. Being one of the six extant Aristotelian writings on logic and
scientific method, it is part of what later Peripatetics called Organon.

In the Prior Analytics, Aristotle defines syllogism as . A deduction in a discourse in


which certain things being supposed, something different from the things supposed results
of necessity because these things are so.

The Subject of Logic: Syllogisms

All Aristotle's logic revolves around one notion: the deduction (sullogismos). A thorough
explanation of what a deduction is, and what they are composed of, will necessarily lead
us through the whole of his theory. What, then, is a deduction? Aristotle says:

A deduction is speech (logos) in which, certain things having been supposed, something
different from those supposed results of necessity because of their being so. (Prior
Analytics I.2, 24b)

Each of the things supposed is a premise (protasis) of the argument, and what results
of necessity is the conclusion (sumperasma).

The core of this definition is the notion of resulting of necessity (ex ananks
sumbainein). This corresponds to a modern notion of logical consequence: X results of
necessity from Y and Z if it would be impossible for X to be false when Y and Z are true.
We could therefore take this to be a general definition of valid argument.

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Aristotle's Logic

First published Sat Mar 18, 2000; substantive revision Wed Mar 23, 2011

Aristotle's logic, especially his theory of the syllogism, has had an unparalleled influence
on the history of Western thought. It did not always hold this position: in the Hellenistic
period, Stoic logic, and in particular the work of Chrysippus, took pride of place. However,
in later antiquity, following the work of Aristotelian Commentators, Aristotle's logic
became dominant, and Aristotelian logic was what was transmitted to the Arabic and the
Latin medieval traditions, while the works of Chrysippus have not survived.

This unique historical position has not always contributed to the understanding of
Aristotle's logical works. Kant thought that Aristotle had discovered everything there was
to know about logic, and the historian of logic Prantl drew the corollary that any logician
after Aristotle who said anything new was confused, stupid, or perverse. During the rise of
modern formal logic following Frege and Peirce, adherents of Traditional Logic (seen as
the descendant of Aristotelian Logic) and the new mathematical logic tended to see one
another as rivals, with incompatible notions of logic. More recent scholarship has often
applied the very techniques of mathematical logic to Aristotle's theories, revealing (in the
opinion of many) a number of similarities of approach and interest between Aristotle and
modern logicians.

This article is written from the latter perspective. As such, it is about Aristotle's logic,
which is not always the same thing as what has been called Aristotelian logic.

Introduction

Aristotle's logical works contain the earliest formal study of logic that we have. It is
therefore all the more remarkable that together they comprise a highly developed logical
theory, one that was able to command immense respect for many centuries: Kant, who
was ten times more distant from Aristotle than we are from him, even held that nothing
significant had been added to Aristotle's views in the intervening two millennia.

In the last century, Aristotle's reputation as a logician has undergone two remarkable
reversals. The rise of modern formal logic following the work of Frege and Russell brought
with it a recognition of the many serious limitations of Aristotle's logic; today, very few
would try to maintain that it is adequate as a basis for understanding science,
mathematics, or even everyday reasoning. At the same time, scholars trained in modern
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formal techniques have come to view Aristotle with new respect, not so much for the
correctness of his results as for the remarkable similarity in spirit between much of his
work and modern logic. As Jonathan Lear has put it, Aristotle shares with modern
logicians a fundamental interest in metatheory: his primary goal is not to offer a
practical guide to argumentation but to study the properties of inferential systems
themselves.

Aristotle's Logical Works: The Organon

The ancient commentators grouped together several of Aristotle's treatises under the
title Organon (Instrument) and regarded them as comprising his logical works:
1. Categories
2. On Interpretation
3. Prior Analytics
4. Posterior Analytics
5. Topics
6. On Sophistical Refutations

In fact, the title Organon reflects a much later controversy about whether logic is a part
of philosophy (as the Stoics maintained) or merely a tool used by philosophy (as the later
Peripatetics thought); calling the logical works The Instrument is a way of taking sides
on this point. Aristotle himself never uses this term, nor does he give much indication that
these particular treatises form some kind of group, though there are frequent cross-
references between the Topics and the Analytics. On the other hand, Aristotle treats
the Prior and Posterior Analytics as one work, and On Sophistical Refutations is a final
section, or an appendix, to the Topics). To these works should be added the Rhetoric,
which explicitly declares its reliance on the Topics.

Organon (Aristotles Logical Treatises): The Syllogism

Aristotle wrote six works that were later grouped together as the Organon, which means
instrument. These works are the Prior Analytics, Posterior Analytics, On Interpretation,
Topics, Sophistical Refutations, and Categories. These texts are considered the body of
Aristotles work on logic, though there is a great deal in the Organon that we would not
consider logic, and many of Aristotles other works, most notably the Metaphysics, deal to
some extent with logic. These six works have a common interest not primarily in saying
what is true but in investigating the structure of truth and the structure of the things that

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we can say such that they can be true. Broadly speaking, the Organon provides a series of
guidelines on how to make sense of things.

Our discussion of the Organon is divided into two parts. The first discusses the syllogism,
the main weapon in Aristotles logical arsenal, which he treats primarily in Prior
Analytics and On Interpretation. The second discusses Aristotles more general remarks on
the structure of being, knowledge, and argument, covered primarily in the four other
works that constitute the Organon.

Summary

Aristotles most famous contribution to logic is the syllogism, which he discusses primarily
in the Prior Analytics. A syllogism is a three-step argument containing three different
terms. A simple example is All men are mortal; Socrates is a man; therefore, Socrates is
mortal. This three-step argument contains three assertions consisting of the three terms
Socrates, man, and mortal. The first two assertions are called premises and the last
assertion is called the conclusion; in a logically valid syllogism, such as the one just
presented, the conclusion follows necessarily from the premises. That is, if you know that
both of the premises are true, you know that the conclusion must also be true.

Aristotle uses the following terminology to label the different parts of the syllogism: the
premise whose subject features in the conclusion is called the minor premise and the
premise whose predicate features in the conclusion is called the major premise. In the
example, All men are mortal is the major premise, and since mortal is also the
predicate of the conclusion, it is called the major term. Socrates is called the minor
term because it is the subject of both the minor premise and the conclusion, and man,
which features in both premises but not in the conclusion, is called the middle term.

In analyzing the syllogism, Aristotle registers the important distinction between particulars
and universals. Socrates is a particular term, meaning that the word Socrates names a
particular person. By contrast, man and mortal are universal terms, meaning that they
name general categories or qualities that might be true of many particulars. Socrates is
one of billions of particular terms that falls under the universal man. Universals can be
either the subject or the predicate of a sentence, whereas particulars can only be
subjects.

Aristotle identifies four kinds of categorical sentences that can be constructed from
sentences that have universals for their subjects. When universals are subjects, they must
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be preceded by every, some, or no. To return to the example of a syllogism, the first of
the three terms was not just men are mortal, but rather all men are mortal. The
contrary of all men are mortal is some men are not mortal, because one and only one
of these claims is true: they cannot both be true or both be false. Similarly, the contrary
of no men are mortal is some men are mortal. Aristotle identifies sentences of these
four formsAll X is Y, Some X is not Y, No X is Y, and Some X is Yas the four
categorical sentences and claims that all assertions can be analyzed into categorical
sentences. That means that all assertions we make can be reinterpreted as categorical
sentences and so can be fit into syllogisms. If all our assertions can be read as premises or
conclusions to various syllogisms, it follows that the syllogism is the framework of all
reasoning. Any valid argument must take the form of a syllogism, so Aristotles work in
analyzing syllogisms provides a basis for analyzing all arguments. Aristotle analyzes all
forty-eight possible kinds of syllogisms that can be constructed from categorical sentences
and shows that fourteen of them are valid.

In On Interpretation, Aristotle extends his analysis of the syllogism to examine modal


logic, that is, sentences containing the words possibly or necessarily. He is not as
successful in his analysis, but the analysis does bring to light at least one important
problem. It would seem that all past events necessarily either happened or did not
happen, meaning that there are no events in the past that possibly happened and possibly
did not happen. By contrast, we tend to think of many future events as possible and not
necessary. But if someone had made a prediction yesterday about what would happen
tomorrow, that prediction, because it is in the past, must already be necessarily true or
necessarily false, meaning that what will happen tomorrow is already fixed by necessity
and not just possibility. Aristotles answer to this problem is unclear, but he seems to
reject the fatalist idea that the future is already fixed, suggesting instead that statements
about the future cannot be either true or false.

Analysis

Aristotles logic is one of the most mind-boggling achievements of the human intellect,
especially when we bear in mind that he invented the entire field of logic from scratch.
His work was not significantly improved upon until the invention of modern mathematical
logic in the late nineteenth century. Obviously, Aristotle is not the first person to make
use of a syllogism in an argument, and he is not even the first person to reason abstractly
about how arguments are put together. However, he is the first person to make a
systematic attempt to sort out what kinds of arguments can be made, what their structure
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is, and how we can prove rigorously whether they are true or false, valid or invalid. His
analysis of the syllogism lays bare the mechanics of rational argumentation so that we can
see the truth plainly through the many layers of rhetoric, ambiguity, and obscurity. With
the proper analysis, Aristotle tells us, any argument can be laid out as a series of simple
and straightforward statements, and its validity or invalidity will be obvious.

Aristotles logic rests on two central assumptions: the fundamental analysis of a sentence
divides it into a subject and a predicate, and every sentence can be analyzed into one or
more categorical sentences. Aristotle identifies four kinds of categorical sentences and
distinguishes each by the way the subject relates to the predicate. In other words, the
way in which subject and predicate are connected is what allows us to distinguish one kind
of sentence from another. Furthermore, Aristotle argues that, at heart, there are only
four kinds of sentences. Every variation that we see in ordinary human speech is just one
categorical sentence, or a combination of several, with window dressing to make it look
less plain. With these twin assumptions, Aristotle can show that there are only forty-eight
possible kinds of arguments that can be madefourteen of them are valid and thirty-four
of them are invalid.

Premises: The Structures of Assertions

Syllogisms are structures of sentences each of which can meaningfully be called true or
false: assertions (apophanseis), in Aristotle's terminology. According to Aristotle, every
such sentence must have the same structure: it must contain a subject (hupokeimenon)
and a predicate and must either affirm or deny the predicate of the subject. Thus, every
assertion is either the affirmation kataphasis or the denial (apophasis) of a single
predicate of a single subject.

In On Interpretation, Aristotle argues that a single assertion must always either affirm or
deny a single predicate of a single subject. Thus, he does not recognize sentential
compounds, such as conjunctions and disjunctions, as single assertions. This appears to be
a deliberate choice on his part: he argues, for instance, that a conjunction is simply a
collection of assertions, with no more intrinsic unity than the sequence of sentences in a
lengthy account (e.g. the entire Iliad, to take Aristotle's own example). Since he also
treats denials as one of the two basic species of assertion, he does not view negations as
sentential compounds. His treatment of conditional sentences and disjunctions is more
difficult to appraise, but it is at any rate clear that Aristotle made no efforts to develop a

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sentential logic. Some of the consequences of this for his theory of demonstration are
important.

The Figures

First Figure Second Figure Third Figure


Predicate Subject Predicate Subject Predicate Subject
Premise a b a b a c
Premise b c a c b c
Conclusion a c b c a b

Aristotle calls the term which is the predicate of the conclusion the major term and the
term which is the subject of the conclusion the minor term. The premise containing the
major term is the major premise, and the premise containing the minor term is the minor
premise.

Aristotle then systematically investigates all possible combinations of two premises in


each of the three figures. For each combination, he either demonstrates that some
conclusion necessarily follows or demonstrates that no conclusion follows. The results he
states are correct.

Aristotelian Deductions and Modern Valid Arguments

Despite its wide generality, Aristotle's definition of deduction is not a precise match for a
modern definition of validity. Some of the differences may have important consequences:
1. Aristotle explicitly says that what results of necessity must be different from what
is supposed. This would rule out arguments in which the conclusion is identical to
one of the premises. Modern notions of validity regard such arguments as valid,
though trivially so.
2. The plural certain things having been supposed was taken by some ancient
commentators to rule out arguments with only one premise.
3. The force of the qualification because of their being so has sometimes been seen
as ruling out arguments in which the conclusion is not relevant to the premises,
e.g., arguments in which the premises are inconsistent, arguments with conclusions
that would follow from any premises whatsoever, or arguments with superfluous
premises.

Types of syllogism

There are infinitely many possible syllogisms, but only 256 logically distinct types and only
24 valid types (enumerated below). A syllogism takes the form:
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Major premise: All M are P.


Minor premise: All S are M.
Conclusion: All S are P.
(Note: M Middle, S subject, P predicate. See below for more detailed explanation.)

The premises and conclusion of a syllogism can be any of four types, which are labeled by
letters as follows. The meaning of the letters is given by the table:

code quantifier subject copula predicate type example


a All S are P universal affirmatives All humans are mortal.
e No S are P universal negatives No humans are perfect.
particular
i Some S are P Some humans are healthy.
affirmatives
are Some humans are not
o Some S P particular negatives
not clever.

In Analytics, Aristotle mostly uses the letters A, B and C (actually, the Greek
letters alpha, beta and gamma) as term place holders, rather than giving concrete
examples, an innovation at the time. It is traditional to use is rather than areas the
copula, hence All A is B rather than All As are Bs. It is traditional and convenient practice
to use a, e, i, o as infix operators so the categorical statements can be written succinctly:
Form Shorthand
All A is B AaB
No A is B AeB
Some A is B AiB
Some A is not B AoB

The letter S is the subject of the conclusion, P is the predicate of the conclusion, and M is
the middle term. The major premise links M with P and the minor premise links M with S.
However, the middle term can be either the subject or the predicate of each premise
where it appears. The differing positions of the major, minor, and middle terms gives rise
to another classification of syllogisms known as the figure. Given that in each case the
conclusion is S-P, the four figures are:

Figure 1 Figure 2 Figure 3 Figure 4


Major premise: MP PM MP PM
Minor premise: SM SM MS MS

Glossary of Aristotelian Terminology


Accept: tithenai (in a dialectical argument)

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Accepted: endoxos (also reputable common belief)


Accident: sumbebkos (see incidental)
Accidental: kata sumbebkos
Affirmation: kataphasis
Affirmative: kataphatikos
Assertion: apophansis (sentence with a truth value, declarative sentence)
Assumption: hupothesis
Belong: huparchein
Category: katgoria (see the discussion in Section 7.3).
Contradict: antiphanai
Contradiction: antiphasis (in the sense contradictory pair of propositions and also
in the sense denial of a proposition)
Contrary: enantion
Deduction: sullogismos
Definition: horos, horismos
Demonstration: apodeixis
Denial (of a proposition): apophasis
Dialectic: dialektik (the art of dialectic)
Differentia: diaphora; specific difference, eidopoios diaphora
Direct: deiktikos (of proofs; opposed to through the impossible)
Essence: to ti esti, to ti n einai
Essential: en ti ti esti (of predications)
Extreme: akron (of the major and minor terms of a deduction)
Figure: schma
Form: eidos (see also Species)
Genus: genos
Immediate: amesos (without a middle)
Impossible: adunaton; through the impossible (dia tou adunatou), of some
proofs.
Incidental: see Accidental
Induction: epagg
Middle, middle term (of a deduction): meson
Negation (of a term): apophasis
Objection: enstasis
Particular: en merei, epi meros (of a proposition); kath'hekaston (of individuals)

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Peculiar, Peculiar Property: idios, idion


Possible: dunaton, endechomenon; endechesthai (verb: be possible)
Predicate: katgorein (verb); kategoroumenon (what is predicated)
Predication: katgoria (act or instance of predicating, type of predication)
Primary: prton
Principle: arch (starting point of a demonstration)
Quality: poion
Reduce, Reduction: anagein, anagg
Refute: elenchein; refutation, elenchos
Science: epistm
Species: eidos
Specific: eidopoios (of a differentia that makes a species, eidopoios diaphora)
Subject: hupokeimenon
Substance: ousia
Term: horos
Universal: katholou (both of propositions and of individuals)

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UNDERSTANDING SYLLOGISM
Steps
1 Know the basic structure of syllogisms. A syllogism has three parts: major
premise, minor premise, and conclusion. Each part is composed of two categorical
terms (terms that denote categories; such as birds, animals, etc.), linked in the
form "Some/all A is/are [not] B." Each of the premises has one term in common
with the conclusion: the major term in the major premise, which forms the
predicate of the conclusion, and the minor term in the minor premise, which forms
the subject of the conclusion. The categorical term in common in the premises is
called the "middle term". For example: Major premise: All birds are animals. Minor
premise: All parrots are birds. Conclusion: All parrots are animals. In this example,
"animal" is the major term and predicate of the conclusion, "parrot" is the minor
term and subject of the conclusion, and "bird" is the middle term.

2 Think of each term as representing a category. For example, "animal" is a


category composed of everything that can be described as an animal.

3 Understand each part is expressed as "Some/all/no A is/are [not] B," with four
possible variation. The universal affirmative (symbolized as A) is expressed as "all
A is/are B," abbreviated as AaB. The universal negative (symbolized as E) is
expressed as "no A is/are B," abbreviated as AeB. The particular
affirmative (symbolized as I) is expressed as "some A is/are B," abbreviated as AiB.
The particular negative (symbolized as O) is expressed as "some A is/are not B,"
abbreviated as AoB.

4 Determine the figure of the syllogism. Depending on whether the middle term
serves as subject or predicate in the premises, a syllogism may be classified as one
of four possible figures.

First figure: The middle term serves as subject in the major premise and
predicate in the minor premise. Thus, first figure takes the form: Major
premise: M-P..........e.g., "All birds are animals" Minor premise: S-
M..........e.g., "All parrots are birds" Conclusion:......S-P..........e.g., "All
parrots are animals".

Second figure: The middle term serves as predicate in the major premise
and predicate in the minor premise. Thus, second figure takes the form:
Major premise: P-M..........e.g., "No foxes are birds" Minor premise: S-

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M..........e.g., "All parrots are birds" Conclusion:......S-P..........e.g., "No


parrots are foxes".

Third figure: The middle term serves as subject in the major premise and
subject in the minor premise. Thus, third figure takes the form: Major
premise: M-P..........e.g., "All birds are animals" Minor premise: M-
S..........e.g., "All birds are mortals" Conclusion:......S-P..........e.g., "Some
mortals are animals".

Fourth figure: The middle term serves as predicate in the major premise
and subject in the minor premise. Thus, fourth figure takes the form: Major
premise: P-M..........e.g., "No birds are cows" Minor premise: M-
S..........e.g., "All cows are animals" Conclusion:......S-P..........e.g., "Some
animals are not birds".

Tips
Note that if either of the premises is negative, the conclusion must also be
negative. If both premises are affirmative, the conclusion must also be affirmative.

In order for a syllogism to be valid, at least one of the two premises must contain a
universal form. If both premises are particulars, then no valid conclusion can
follow. For example, if "some cats are black" and "some black things are tables", it
does not follow that "some cats are tables".

Drawing out or visualising Venn Diagrams can help in understanding distribution of


terms in determining whether a given syllogism is valid or not.

o The universal affirmative (A) is represented as one circle (the subject)


entirely within another circle (the predicate).

o The universal negative (E) is represented as two mutually exclusive, non-


overlapping circles.

o The particulars (I, O) are represented as two intersecting circles, each with
area in common and area not in common with the other.

o There is another way to mark up Venn Diagrams when solving problems of


categorical syllogisms: instead of using them in the purely set-theoretical
manner described above (also known as "Euler Circles").

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Draw three intersecting circles and use shading to indicate absence (or
impossibility), leave blank to indicate "no knowledge", and a small '+' sign to
indicate presence.

Now a valid categorical statement will have one of four forms:


either a lens fully shaded
a lune fully shaded
a '+' mark in a lens
a '+' mark in a lune
The syllogism is valid (in the classical Aristotelian sense)if the circles representing
Major and Minor Premises are one of four forms: either a lens or lune fully shaded,
or a '+' mark in lens or lune.

This method works conveniently only for syllogisms of three categorical statements
only: Minor Premise, Major Premise and Conclusion.

Understand the distribution of terms. A categorical term is said to be distributed


if all individual members of that category are accounted for, for example, in "all
men are mortal", the term "men" is distributed because every member belonging to
that category is accounted for, in this case, as mortal. Note how each of the four
variations distributes (or not) the terms:

o In "All A are B" propositions, the subject (A) is distributed.


o In "No A are B" propositions, both the subject (A) and the predicate (B) are
distributed.

o In "Some A are B" propositions, neither the subject nor the predicate are
distributed.

o In "Some A are not B" propositions, the predicate (B) is distributed.


In order for a valid conclusion to be made, the middle term must be distributed in
at least one of the premises, to allow the major and minor terms be linked. Avoid
the fallacy of the undistributed middle. For example, from "All dogs love food", and
"John loves food", it does not follow that "John is a dog".

In order for a syllogism to be valid, at least one of the two premises must be
affirmative. If both premises are negative, then no valid conclusion can follow. If
both premises are negative, the middle cannot establish any link between the
major and minor terms.

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Beware of the fallacy of the illicit major, where the major term is undistributed in
the major premise but distributed in the conclusion. An example of this is in the
form All A are B; no C are A. Therefore, no C are B. For instance, "All cats are
animals"; "no dogs are cats"; therefore, "no dogs are animals": this syllogism is
invalid because the major term "animals" is undistributed in the major premise, but
distributed in the conclusion.

Beware of the fallacy of the illicit minor, where the minor term is undistributed in
the minor premise but distributed in the conclusion. An example of this is in the
form All A are B; all A are C. Therefore, all C are B. For instance, "All cats are
mammals"; "all cats are animals"; therefore, "all animals are mammals": this
syllogism is invalid because the minor term "animals" is undistributed in the minor
premise (because not all animals are cats), but distributed in the conclusion.

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MOOTING
Moot court is the genesis of a legal career that, regardless of practice area, requires
excellence in advocacy. An excellent advocate is knowledgeable on the law, masterful in
marshalling facts, skilled in the forensic arts, respectful of decorum, compliant with
proper procedure, mindful of due process, fair with adversaries, devoted to the client,
helpful to the court, honest with everyone, and, above all, persuasive

First, moot court hones the most formative skills that law school can impart.

Second, moot court gives student-advocates unparalleled opportunities to advance their


careers, whether or not they intend to litigate.

Given moot courts benefits to student-advocates, to legal education, and to the


profession, we ask this Court to consider our strategies for winning a moot court oral
argument.

Thought process requires first-year law students to read and write in a new language, the
language of the law. But instead of thinking, speaking, and writing in legal jargon,
thinking like a lawyer involves understanding how asking and answering questions can
address and resolve uncertainties and ambiguities. Moot court, the highlight of every first-
year legal-writing course, teaches students advocacy skills to solve legal problems.

Moot court enhances the three most important skills that law schools offer their students:
starting an argument with a conclusion, differentiating fact from opinion, and organizing a
legal argument by issue rather than by a chronological narrative of the facts. Moot court
also teaches students professionalism and ethics, to apply law to fact, to structure and
rank a legal argument by strength, and not to assert losing propositions. By giving law
students opportunities to improve their legal writing, legal research, and oral advocacy in
a competitive environment that prepares students for a competitive world, the moot court
experience is unlike any other in law school.

I. INTRODUCTION TO MOOT COURT

To win at moot court, a student-advocate must appreciate its values and understand its
detriments.

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An obvious challenge is to submit a timely written brief and deliver an oral argument
under pressure. Other obvious challenges are working with teammates and confronting
nervousness. But the more subtle challenges are the hardest of all.

Let alone a lengthy trial record, which contains massive amounts of detail irrelevant to
the issues before the moot court. Moreover, those who draft the problem for a
competition and participate in the scoring and judging-students, professors, and practicing
attorneys, depending on the competitionalso have no time to prepare and read 100-page
factual records. This limitation is unique to moot court; practicing appellate attorneys are
accustomed to reviewing comprehensive, lengthy, and full trial records. But moot courts
unique difficulty-some might say negative-permits participants to focus closely on the
competitions legal issues in formulating their arguments.

Also singularly difficult is that most moot court teams are composed of either two
advocates who argue both sides of an issue or of teams of three, in which the swing
argues both sides. This does not prepare students to argue from both sides of their
mouths. Rather, it compels student-advocates to learn the opposing sides case
thoroughly, making them better able to defend their positions and structure their
affirmative points in a way that undercuts their adversarys position. Through this difficult
form of Devils advocacy, advocates will see the flaws in their own positions and learn to
think objectively, skeptically, and honestly.

Moot court will not teach many aspects of appellate advocacy, such as pre- and post-
argument appellate motion practice, the sequential (non-simultaneous) submission of
briefs, writing reply briefs, and many other things. But moot court oral arguments closely
simulate appellate arguments in the real world and teach the skills required for success
at lawyering.

Despite the difficulties and problems with moot court, many benefits accrue to student
competitors, who are essentially the law schools football team and carry the law schools
flag onto the field.

Moot court also develops students ability to work collaboratively with their teammates
and other lawyers. The moot court process requires students to work as a team in
formulating legal arguments, an important talent for practicing attorneys. Competitors
working in teams should work together to write a cohesive brief, even when teammates
write different sections of the brief. Teammates should work together to review, edit, and

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revise the brief until it is the best piece of writing the team can collectively draft. By
teaching that a team is only as good as its weakest link, moot court forces teammates to
teach one another, and all participants learn as a result. Then, moot court participants,
together, will work tirelessly to develop their arguments and practice, practice, practice.

Despite its inability to replicate real appellate advocacy directly, moot court is the
clearest window (other, perhaps, than a course in pure appellate advocacy or clinical
appellate-advocacy course) into appellate practice that law students can get. The best
moot court competitions feature prominent state and federal judges who evaluate
advocates skills and suggest ways to improve those skills.

The moot court process begins with the legal brief. The brief is the first opportunity that
moot court competitors have to show their ability to comprehend the issues presented in a
competition. The brief tests the competitors ability to analyze the legal fields
uncertainties and provide thoughtful answers to them. The brief allows competitors to
show the competitions brief-scoring judges that they can and do think like lawyers.

As competitors research and write, they should ask themselves questions like What
elements of the case have been addressed by case law and statutes?and What legal
theory can be crafted to address both the facts of the case and the relevant authorities?
Competitors should spend considerable time researching and drafting the brief, including
multiple iterations and revisions, to ensure that their writing reflects their understanding
of the issues presented and that their assertions are comprehensive and coherent. Writing
a good brief saves time researching the legal issues during the oral-argument practice
phase, and a brief must score well for the advocates team to win.

The second component of the moot court experience, oral argument, is an opportunity for
competitors to elaborate on their written submissions and further explain how they
worked through the uncertainties of the case to arrive at their conclusions. In this regard,
competitors must be prepared to assist the moot court judges, who are themselves
working through the uncertainties, by offering succinct and direct responses to the judges
questions. To accomplish this task, competitors need to be much more than clever,
superficial orators highlighting the key points of their brief and stressing form over
substance. They must be responsive, forthcoming, clear, fluid, professional, convincing,
and likeable. And while respecting the judges personally and their dominance over all
things procedural and the courtroom, they must assert control and be dominant on and
confident about all matters concerning the facts and legal arguments of their cases.
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In a typical moot court oral argument, three to seven judges will have ten to twenty
minutes, depending on the competition and whether the advocate reserves rebuttal time,
to get answers to their questions.

As with any appellate presentation, excellent advocates must be both well-prepared and
persuasive. Persuasiveness is affected by several factors, including appearance, body
language, argument structure, delivery, and responsiveness.

An advocates ability to convey points clearly and persuasively to the judges is crucial to a
winning oral argument. Persuasive oral argument requires advocates to be attentive to
judges concerns about their legal reasoning. Excellent advocates satisfy doubts that arise
in the judges minds.

To win a moot court oral argument while learning the most from the experience,
advocates must prepare meticulously, sharpen their public speaking skills tirelessly, and
alleviate the moot courts concerns by satisfactorily answering questions.

2. PREPARATION

A. Knowing the Rules

Preparation for oral argument in a moot court competition starts with studying the
competitions rules and format for oral argument. The advocate must read and
comprehend the rules in their entirety the moment they are released. Advocates should
discuss the rules with teammates, coaches, and faculty advisors to ensure that the entire
team understands the parameters.

The need to learn and follow the rules cannot be understated. Moot court competitions
are like any other competition, with points and penalties. The goal, perhaps obviously, is
to accumulate the most points and win.

The first step in maximizing a teams chances of winning is to comply with the rules. Once
advocates are familiar with their competitions procedural rules, they can prepare their
substantive arguments, beginning with the brief. The second and more strategic step is to
take advantage of the rules.

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B. Building the Argument: Theme and Roadmap

The process of creating arguments begins with the briefs. Advocates should use their
briefs to structure their arguments. During the brief-writing phase and in advance of
submitting their briefs, advocates should conduct a few oral-argument practice rounds.
Practice rounds during brief-writing enable competitors to see and address the strengths
and holes in their arguments; advocates can then address these issues in the brief. A
strong brief makes preparation for oral argument significantly easier.

In terms of preparing the substantive argument, moot court advocates should view oral
argument as an opportunity to discuss with the moot court judges the resolution of
difficult legal issues. The goal of the presentation is to persuade the moot court judges to

resolve the issues in the advocates favorand to score better than the other team. To
help persuade the judges to rule in their favor, advocates should prepare and develop a
theme for their side of the case. A good theme will persuade a moot court that an
advocates position is correct.

Adopting the clients perspective allows advocates to access the emotional dimension of
the case and perhaps construct a theme of fair substance, which articulates to the court
how the law has wronged the client.

C. Accounting for Standards of Review

As in real appellate advocacy, advocates must know the standards of review applicable to
their arguments. Skillful organization of the substantive issues and an impressive oral
delivery are not enough to win relief for a client.

The appellate court decides questions of law de novoas if the issue were being decided
for the first time on appeal. On issues of fact, however, the trial court is accorded
significant deference.

Advocates should also consider the preservation doctrine. With some notable exceptions of
which advocates must be aware, legal issues raised on appeal must first have been
presented to the trial court. In this way, the trial court can consider the objection, the
opposing party can respond, and the error can be corrected without wasting judicial
resources on an appeal.

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D. Studying the Record

Advocates should have a good familiarity with the record from writing the brief. But at
oral argument they must know the record and procedural history of the case intimately.
Even though the moot court might (or might not) know the record well, advocates should
have the best knowledge of the case and be able to cite particular facts of the fact
pattern on demand.

E. Preparing Notes for the Argument

Advocates should expound in outline format each issue in the roadmap. Arguments
supporting each issue should cite legal authority and facts from the record.

In drafting the outline, advocates should evaluate the importance and merits of the
arguments supporting their key issues. Advocates need to identify which supporting
arguments are required to win an issue. Advocates should also identify each issues
weakest arguments-about which the court is likely to have questions-and develop
responses in advance. As they did when constructing a theme, advocates need to think
about public-policy considerations that could affect the courts acceptance or rejection of
a particular argument.

Advocates should anticipate questions that the moot court judges might ask, such as policy
questions that both sides of the problem raise and hypotheticals that test the
consequences of the desired holding, and include point-form responses to them in the
outline. Answering questions from the bench without diverging from the major points an
advocate intends to make is one of moot courts most demanding challenges. The
advocate should view questions as an opportunity to engage the panel and alleviate any
concern a judge has about the advocates argument.

III. PRACTICE

The most valuable part of preparing for oral argument, real and moot, is completing
practice rounds, a process called mooting, although some call the entire process, including
the real round, mooting. Practice connects the initial stages of preparationdeveloping a
theme and creating an outlinewith delivering a cohesive, smooth, and fluid argument.
Ideally, the mooting process should begin before the brief is submitted. Doing so will (1)
improve the quality of the written arguments by helping advocates identify where they
must clarify the presentation of their issues and sharpen their arguments and (2) jump-
start advocates oral-advocacy skills.
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Practice rounds should be as real as possible. Advocates should follow court decorum, stay
in character, wait until the round ends to ask the judges questions about their
performance and how to answer questions, and speak to the mock judges as if they are
real moot court judges.

IV. DELIVERY

Thus far, advocates have been preparing to deliver a persuasive argument to the moot
court on substantive legal issues. After weeks of writing and oral argument practice,
advocates are well-versed on the legal issues and the record and are ready to deliver a
persuasive legal argument.

A. First Impressions

Because the judges will see the advocates before they hear them, advocates should make
strong first impressions by appearing ready for an intellectual and friendly conversation.
Advocates can do this by dressing well, wearing dark, conservative colors and avoiding
fancy, heavy, or loose jewelry and other accoutrements that could distract the court or
clang or the lectern or podium.

B. Professional Behavior and Good Manners

Moot court advocates are judged not only on how they address the court and how they
present themselves, but also on how they respond to opposing counsel. Good advocates
treat the bench and their adversaries with respect and dignity. Advocates must remain
professional during oral argument, even when the argument does not go as anticipated.
They should not raise controversy unnecessarily by including frivolous arguments.
Advocates will lose points if they personally attack or embarrass their moot court
adversaries or even personalize the argument by referring to their adversaries by name,
even if with a title. Advocates should refer to the opposing party instead of to their
counsel (e.g., respondent rather than respondents counsel or, worse, my
opponent).

C. Style

Another element of persuasion is style. Style involves body language, facial gestures,
speech inflections, pace, and eye contact. The effect of style on an advocates
persuasiveness begins before the formal argument begins.

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Unless multiple judges ask successive questions, advocates should not take notes while at
the podium or even hold a pen. If successive questions are asked, however, advocates
might find it helpful to take brief notes about each judges question to ensure that all the
questions are answered, with the advocate scanning the entire panel and stating
something like To answer Judge s ----- question first . . . . or To answer the questions
in the order received . . . . Failure to answer all the questions will result in a reduction
of points from the judge whose question went unanswered, causing that judge to feel
slighted.

Regardless of personality type, advocates must speak with conviction to show that they
believe what they are saying, even if they do not. Advocates convey conviction by making
direct assertions rather than metadiscursive ones like I am arguing that . . . ., I believe
that . . . ., I feel that, I think that, and Petitioner contends that . . . . The goal is
to forget the wind-up and just deliver the punch. Besides, these empty, introductory, and
non-affirmative phrases distance the advocate from the client. Advocates should also
avoid adverbial excesses like clearly, certainly, and obviously, which both insult the
listeners intelligence and raise the burden of proof or standard of review. Why must a
litigant who should be happy simply being right try to be clearly right?

Advocates must also be scrupulously honest. In oral advocacy, honesty means


understatement; understatement is an essential attribute to persuasion. The opposite of
understatement is exaggeration. Advocates must never exaggerate facts or legal authority.
If the fastest way to lose at moot court is to violate a competition rule, the second fastest
is to get caught misstating or misrepresenting fact or law.

V. STRUCTURE OF THE ARGUMENT AND GOING THROUGH IT

Advocates should, as they do in their briefs, strategically structure their oral argument so
that it is clear, organized, and fluid. Although advocates should not read their arguments
or recite a memorized speech, they should memorize their introduction and roadmap so
that they can establish eye contact the moment they start speaking.

Advocates must avoid emotional appeals. Some advocates begin by saying, This case is
about -----, but beginning that way invites questioning and excites controversy too early
in the argument, when the advocate must try to get through the roadmap without a
judges hostile interruption. Saying this case is about might cause some tough judge to
say No. Isnt this case really about your adversarys point that . . . ? Besides, unlike

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juries, judges are concerned with the rule of law and the ramifications of the rule. Judges
do not want to be pigeon-holed into an either/or debate.

Advocates should cite cases in support of the argument, but only when they know the
facts of the cases they cite. It is one thing not to know the facts of a case about which a
judge asks. It is another not to know the facts of a case the advocate raised. And the
judges often ask about the facts of a case. Sometimes they ask about the facts to show
that the advocates citation is inapposite. Sometimes they ask about the facts of a case
because they do not know what else to ask about.

VI. ANSWERING QUESTIONS

A question is an invitation to persuade. Advocates should encourage questions and use


them to engage the bench and clarify any concern the bench might have about a
particular issue. It is an opportunity to persuade the court to adopt a clients viewpoint. In
a typical competition round, judges repeatedly interrupt advocates with questions.
Questions in preliminary rounds of moot court competitions tend to focus on the facts,
while later rounds with more seasoned moot court judges tend to be more law- and policy-
driven. Advocates should welcome a conversation with the bench. Questions from judges
give advocates a chance to persuade them by supporting answers with information that
helps the court understand the argument and rule in the advocates favor. It also allows
for personal interaction and enables the advocate to persuade the judges not only to
believe the argument but also to like the advocate.

Questions should be answered directly and concisely but in a manner that supports an
advocates case. Advocates should not fawn over a judges question (e.g., Thats a
brilliant question, Your Honor!).

Advocates should answer questions immediately and never tell a judge, I will get to it
later. Doing so is inappropriate and disrespectful. Instead, the advocate should answer
the question right away, even if the question relates to a different part of the argument
and even if the judge asked it because the judge was not following the order of the
argument, advertently or because the judge was confused.

Advocates should not fear disagreeing with a judge or conceding a weakness in their case
when conceding means merely acknowledging the weakness.

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When answering, advocates should focus on the questioner but maintain eye contact with
the entire bench.

Advocates must be prepared for the standard moot court questions. Like questions about
the standard of review, discussed earlier, these questions are to moot court what apple
pie is to America.

Advocates should remain calm when dealing with an overly aggressive bench that asks long
questions and continually cuts off the advocates while they are answering. Because moot
court competitions grade performance, giving full, descriptive answers is less important
than how advocates handle being accosted by a rogue judge or bench. Advocates should
keep their emotions in check and not abandon their deferential attitude toward the
bench.

The final and most difficult hurdle when answering questions is transitioning from the
answer to an affirmative point. Advocates should not wait for judges to let them return to
their main argument. Finding a way to relate the answer to one of the points that an
advocate intends to make can be accomplished by thinking of probable questions at the
preparation stage and practicing forming answers that bring the discussion back to a
favorable point. At a minimum, advocates should strive to relate their answer to their
theme and to use the theme to transition back to their argument.

VII. CONCLUSION OF ARGUMENT

The typical moot court conclusion flows from the end of the argument and conjures up the
original theme. It includes the advocates major points as justification for their position
and ends with the relief sought. Given a few moments after the advocate sees the one-
minute time card go up, it is succinct and concise, and it should last for ten to fifteen
seconds and not longer. The typical moot court conclusion is canned, repetitive, and
boring, however. Even when done well, the judges do not listen to them. These
conclusions will not harm the argument, but they will not gain scores either, unless the
competition score sheet tells the judges to score a conclusion, in which case advocates
should always conclude, even in a canned, boring way, and even if the judges are sure to
tune out.

One often sees excellent oral rounds end, not with an advocates proffering a conclusion,
but with an advocates running out of time answering a question. An advocate should not
be upset if the team does not have time to make the typical canned conclusion.
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Advocates should not finish unless they are inside the two-minute remaining mark; a judge
might believe that an advocate who ends too early is unprepared. But within the two-
minute mark, advocates should stop if they end the argument on a high note, with a
strong statement that supports their position.

VIII. REBUTTAL

The best rebuttals are concise and direct. At the beginning of the argument (when the
first petitioner begins the presentation), the advocate should ask the chief justice or
judge to reserve time for rebuttal. Requesting the chief justice or judges permission for
rebuttal time is essential even if rebuttal time is reserved with the bailiff before the
round begins. Otherwise, the judges will not know that petitioner/appellants counsel will
be rebutting. When given, rebuttal may proceed along the lines of Chief Justice/Judge:
Two quick points on rebuttal. First, respondent/appellee argues on the [first] issue
[objective statement of issue] that . . . . But . . . . Second, respondent/appellee argues on
the [second] issue [objective statement of issue] that . . . . But . . . . Thank you.
Advocates should move through rebuttal quickly so that judges will not bombard the
advocates with new questions. Effective advocates will attempt to complete their rebuttal
in thirty seconds.

The moot court rebuttal should be as short and punchy as possible. A quick rebuttal might
prevent a judge from asking questions. Questions during a rebuttal are bad. They lead to a
protracted colloquy that might result in a mistake. And a mistake on rebuttal can be fatal.
The rebuttal is the last memory the court has of the advocates. A moot court round is
never won on rebuttal, but it is sometimes lost on rebuttal.

A moot court rebuttal is not always necessary. In a head-to-head round, if the opponent
has done poorly and the team is convinced that the panel has selected it as the winners of
the round (based on brief and orals scores), the team should waive rebuttal, even if the
team has much to say. No reason exists to continue the argument if the team has won the
round. At that point, rebuttal will not help them win the round, but it might cause them
to lose it.

VIII. REFLECTION

It is customary for moot court judges to comment after each round. Whether the
comments are supportive or critical, general or specific, the comments often do not

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reflect the judges scores. Judges might say that all the advocates did a great job (e.g.,
Best round ever; I wish lawyers before me in court were this prepared) when, in fact,
the judges scored the advocates poorly.

IX. DEBRIEFING

After the comments have concluded and if time remains, advocates should meet with their
coach or teammates and debrief the round. This includes identifying the mistakes the
advocates made and the successes that advocates realized during the round. Criticism is
healthy because it allows advocates to implement improvements.

A debriefing period also allows advocates to identify the strengths and weaknesses of their
opponents arguments. The advocates might argue the opposing side in a future round.
Advocates should use the time between rounds to identify the substantive arguments and
gauge the judges reactions to their presentation.

X. THE COACHS ROLE

Behind every successful moot court team is a dedicated shadow team (which writes a
bench brief, moots the student-advocates, and competes in the competition the next
year), student coach, faculty advisor, or alumni advisoror all four in an effective moot
court programwho provide vital support at various points of preparation, practice
rounds, and the competition. As moot courters prepare for a competition, an effective
coach or advisor becomes proactive in making sure that a team is intellectually and
logistically prepared. Coaches should ensure that team members submit their briefs on
time and complete practice rounds. Coaches should accompany their teams to
competitions and help them there.

XI. CONCLUSION

A WINNING MOOT COURT ORAL-ARGUMENT CHECKLIST

Here are the key guidelines that moot court oral advocates should heed closely.
1. To increase your chances of winning a moot court competition, attend a law school
that has an independent moot court board. The board should have the final say,
consistent with its by-laws and the schools budgetary considerations, on who will
join the board, who will be officers of the board, in which competitions to
compete, and who will compete in them. To win competitions, the law school must
offer an appellate-advocacy or skills course that its moot court students can take

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and which is taught by a faculty member committed to moot court. The school
must support its moot court board and its teams with student shadow teams,
student coaches, alumni advisors, and faculty advisors. The law school must also
(1) award academic credit and writing-requirement satisfaction for competing and
coaching; (2) erect trophy-display cases and display trophies and plaques
prominently; and (3) confer plenty of moot court awards, including Order of
Barristers membership, at commencement. If your law school does not do all these
things, fight for them.
2. During your time on your moot court board, support your team. Do practice rounds
for other board members and attend their competitions. You will learn and develop
an sprit de corps as part of a winning team. When it is your turn to compete, your
friends will help you.
3. Once you are chosen to compete in a particular competition, read and study the
fact pattern as soon as it comes out. Then choose a theme that an intelligent non-
lawyer will understand. The theme unifies the issues with the essence of the case
and suggests that justice will suffer if the court rules against the advocate.
4. Practice oral argument with your teammates before finishing the brief. Practice
with non-teammates, too, if the rules do not forbid doing so.
5. After the brief is submitted, practice tirelessly before the competition with a
variety of judges using a variety of questioning stylesespecially tough, aggressive
questions.
6. Give the practice-round judges good briefs written by your shadow team or by
opposing competitors who wrote for the side against which you are arguing.
7. Pay attention to the questions asked in practice and further research their answers
after the practice round.
8. Comply with the competition rules and take advantage of them to earn the
maximum score.
9. Study the judges scoring sheet and alter your argument style accordingly.
10. Study opposing competition briefs and continue researching until the competition is
over.
11. Teach your teammates to be great speakers. You are only as good as your weakest
teammates. The more you coach your teammates, the more you yourself will learn
what a moot court judge appreciates in a moot court advocate.
12. Videotape yourself and be ruthlessly self-critical.
13. Scope out the moot court room before the argument.

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14. Stand when the judges enter the room and when they address you-both individually
and as a teamduring the competition.
15. Quietly push in your chair, go to the podium, and await the chiefs signal (either
verbal instructions or a nod of the head) before beginning.
16. Start with a strong and short (sixty-second maximum) introduction and roadmap.
You should introduce yourself and co-counsel; ask for rebuttal time; state in one
argumentative sentence what co-counsel will argue (not the neutral my co-
counsel will argue the ---- issue) and then what you will argue; offer one to three
short sentences giving the determinative facts (not opinions or conclusions) or
procedural posture (if relevant); state the relief sought; and give two or three
reasons why your team should win on the issue you are arguing.
17. Never ask the court whether it wants to hear a brief recitation of the facts or
whether it is happy with your answer to a question.
18. Never begin with This case is about . . . . Although doing so articulates your
theme up front, that beginning leads too often to a judges ruining your roadmap
with a hostile question or comment articulating your adversarys theme.
19. Speak in simple, plain English, as if talking to a smart high-school student.
20. Stay in the moment and focus so that you forget nothing important and not lose
your train of thought.
21. Speak slowly and conversationally, lower your speaking pitch, and project from the
diaphragm.
22. Make eye contact with every judge during the entire argument. Look nowhere
except at the judges or, quickly, the clerk or bailiffs time card.
23. Do not use adverbial excesses like clearly and obviously.
24. Do not compliment a judge by saying That is an excellent question, but you may
give a judge a respectful nod to recognize an excellent question.
25. Do not say, As I argued previously or With all due respect.
26. Smile occasionally. If you cannot smile or if you smile too much, at least do not
look dour.
27. Do not move about. Keep your feet planted in one place, flat on the ground.
28. Do not distract with hand gestures, except to use practiced, theatrical, and very
occasional hand gestures like steepling or palms-up (but not down) movements,
always at chest level or below, that are consistent with what you are saying. Never
point at anyone or tap on the lectern or podium.

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29. If the record does not address something, tell the judges that the record is silent,
but then, if possible, explain why a fair inference from the record supports your
point.
30. Never, ever read. If you use notes, make them short and in bullet-point form on
the inside of a manila file folder cut down to fit on a small lectern or podium. But
winning teams avoid using notes. If you do not use notes, make it obvious to the
judges that you are not using notessuch as by slowly buttoning a jacket, slowly
pushing in the chair, and slowly walking to the podium while making sure that the
judges see hands that are holding nothing.
31. Stop immediately to answer a judges question. Never speak over a judge, except
when, over a series of questions, a judge will not let you speak.
32. Answer every question, beginning with a yes or no whenever possible. Then
give the reasoning behind the answer and one or two citations to support your
answer. If a judge makes a point that contradicts your position, explain why the
judge is correct and add a but statement.
33. Answer multiple questions in some logical order, such as the order in which they
were asked.
34. Do not repeat a judges question. Just answer it.
35. Welcome questions. Never get defensive.
36. Answer questions immediately. Do not tell a judge, Ill get to it later.
37. Know thoroughly the procedural history, the facts of the case, and the applicable
appellate standard of review and trial or motion burden of proof.
38. Address the other sides contentions, both as the petitioner/appellant and as the
respondent/appellee. Seize the nettle as the petitioner/appellant by addressing
the respondent/appellees arguments in advance.
39. One good way as the respondent/appellee to rebut the petitioner/appellants
arguments is to note a judges question to counsel for the petitioner/appellant and
explain why you disagree with the petitioner/appellant.
40. Cover all major arguments. Addressing the judges concerns is important but should
not be done at the expense of omitting arguments necessary to win.
41. Once you answer a question, segue to the next point. There are many ways to
transition, including saying something like And that brings me to my next point.
42. Concede fact, law, and argument when doing so does not matter much or when you
can argue that you win regardless of the concession. Never concede something
important.

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43. Do not pause after answering a question.


44. Avoid lengthy or numerous quotations.
45. Do not give the full citation to a case, but simply the name of the court and date of
the decision.
46. Do not cite a case whose facts you do not know. You must know the details of the
cases supporting your most important arguments and your adversarys most
important arguments.
47. Avoid planned jokes and overblown metaphors. Spontaneous humor at your own
expense is acceptable. So is laughing gently at a judges joke.
48. Do not talk or fidget when a team member, an adversary, or a judge is speaking.
49. Drink water before approaching the lectern or podium but, if parched, drink while
a judge asks a question.
50. Remember that oral argument is less about debating than about having a
conversation with the judges and addressing their questions so they can rule in
your favor.
51. Never personally attack or embarrass a moot court adversary. Do not comment on
an adversarys minor mistake. Always refer to the opposing party, not the opposing
partys counsel.
52. Respect the time card. When time is up, thank the panel and sit down or say, I
see that my time is up [or has expired] (unless the advocate has only half a short
sentence left) and ask the chief for permission to answer the question or finish the
thought. Advocates should not give a canned conclusion during the argument and
especially not after the time card goes up.
53. End on a high note, even with a minute or two left, but first say, And if there are
no further questions, thank you.
54. Rebut using a moot court approach, not a real-life appellate-advocacy approach.
For details, read this article.
55. Waive rebuttal (from counsel table, not the lectern or podium) if you won a head-
to-head round, but always rebut in a competition involving cumulative scoring.
56. Do not slow down or take anything for granted until you win the competition.
57. Wholeheartedly want to win. The idea of losing should be mentally and physically
painful.
58. When you are done competing, coach a team.
59. Buy silver polish to show off your winning trophies.

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60. Return as an alumnus to support your alma maters moot court program. While at
your school in the years following graduation, pause at the moot court trophy
display case to glance at your trophy and to recall your moot court days: the best
part of your law-school experience.

108

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