e ‘G, University of San Carlos School of Law é& Governance COLLEGE OF LAW Cebu City LLB 135N: Legal Technique & Logie (LTL) Atty. Edmar D. Lerios 2019 Edition. “Logic is the arsenal, and rhetoric the artilery, which it preserves. Both have thei utility; both contribute to the same purposes. But the arte themselves are as distinct, as those of the architect, who ereots the building, and of the armorer, who fabricates the weapons” = John Quiney Adame COURSE DESCRIPTION The course on LLB 135N (LTL} is not just a study of logic. itis also a study about the repertoire of skills and techniques that lawyers need to make effective arguments. Hence, this course aims to equip students with time-tested tools of logic, reasoning and argumentation Studying law isn’t just about leaming a bunch of legal rules, provisions and cases. It is not only about preparing student for the bar examination, It is also about acquiring the skills that prepare the student in the practice of law. Knowledge of the law is not enough. Students of law should aspire to master an array of talents in arguments, logic and reasoning Ultimately, this course seeks to train students not only to “think like a lawyer” but also to argue like a lawyer. That is, to think critically and to present ideas using the techniques of analysis and persuasion because “the maximum value of knowing the law will never be achieved unless and until the lawyer can effectively present his or her knowledge in a persuasive logical argument.” This course uses the most effective way of learning the techniques of legal reasoning The Socratic Method and Outcomes-based Learning Approach (OBE). With the knowledge of the techniques and right preparation, the student will be equipped with the skills needed in the practice of law, especially in legal advocacy.INTENDED LEARNING OUTCOMES (ILOs) 1. To acquire the skills and the mindset to think, analyze and argue like a lawyer; 2. To gain a strong grasp of the techniques of effective legal persuasion; 3. To develop a rich understanding of the principles of logi¢ and reasoning and to be able to apply those principles in making a case; and 4, To be able to articulate and demonstrate ideas through critical thinking and skillful advocacy, BENEFITS FOR THE LAW STUDENTS: * “You will find in this Course a unique perspective that will enhance your understanding of legal principles and help you participate with confidence in classroom discussions and debates.” * "Once you have a comprehensive and explicit framework of the arguments and counter-arguments, you can readily see the structure of legal discourse in briefs, cases, bar problems and classroom debate." BENEFITS FOR BAR ‘PREPARATION: * LTL helps the students Bar Examinations preparations because they will learn how to approach and reason their way through the legal and bar problems. Through actual practice and exercises, it exposes them to the 3 Ls of Bar Exam Success Law...Language...Logic. THRESHOLD LEARNING OUTCOMES (TLOs) Upon completing the course, the Carolinian Law student will demonstrate the following: + TLO2: ETHICS * TLOS: THINKING SKILLS + TLOS: COMMUNICATION + TLOB: SELF-MANAGEMENT PROGRAM LEVEL LEARNING OUTCOMES (PLLOs) Upon completing the law:program, a Carolinian law graduate will demonstrate the following + PLLO 1: KNOWLEDGE; PLLO 2: ETHICS, PROFESSIONAL RESPONSIBILITY, WITNESS TO THE WORD; PLLO 3: THINKING SKILLS; PLLO 4: RESEARCH SKILLS; PLLO 5: COMMUNICATION AND COLLABORATION; PLLO 6: SELF-MANAGEMENT At the end of the law program, the Carolinian law graduate is expected to be a Witness to the Word and to embody the following graduate attributes: Scientia: A COMPETENT PROFESSIONAL Critical Thinker Lifelong learner Skilled researcher Sound decision-maker Innovative problem-solveroa & University of San Carlos School of Law & Governance COLLEGE OF LAW Cebu City sticulate communicator Virtus: A VIRTUOUS EXEMPLAR ° incorruptible servant leader Ethical and valties-driven practitioner Devotio: A DEDICATED ADVOCATE Committed peacemaker Culture-sensitive patriot Socially-engaged citizen Passionate worker for the marginalized COURSE POLICIES & REQUIREMENTS 1. Come to class on time. Be prepared when coming to class. Attendance is a must. 2. Be prepared for quizzes, practical exercises and Socratic Dialogues. Active Participation in class is required, Students are expectedito read and study carefully the assigned reading materials. 3. All celiphones and electronic devices, including laptops, cannot be used and must be turned off. Anyone caught playing with electronic devices will suffer penalties. 4. Students are not allowed to study reading materials from other classes while the class is on-going. You are expected to give your full attention and focus in the class. Anyone caught will be called for an oral exam COURSE OUTLINE Part I. Introduction “The eludy offaw ean be disappointing et tines, a mater of aplina narrow rae and arcane Brovedure fo an uncccperative realy; a sort of oorifid aeaounting tht aerves to requlate the affaire cof those uho have power—and that al oo often eooke to explain, to those who do not, the ultimate wisdom and juetnees of tei condition ut that’s not al the aw a, The lw ie eo memory; the law sao records a long-raing eorwersaton, nation arguing with ts conasionce.” — Barack Obama A. Introduction B. Legal ThinkingATTY. EOMAR Lenios Required Readings: “Joel Trachtman. The Tools of Argument: How the Best Lawyers Think, Argue, and Win, CreateSpace: 2013, Part H. Tools of Argument “Undertecng tho fol of eye ul law you obo mae parauni, fo onnvon the argurents Of epperent ard 0 ake dxton when you ae the trgt of preuaie argument.” ~ Joel Trachtman, A. Arguing in a Legal System: Procedure 1. Argue About Arguing: Why Procedure Matters 2. ‘Argue for Procedural Benefit To Win on Substance, Maximize Your Procedural Advantage 8. Argue That It's None of the Tribunal’s Business: There Is No Jurisdiction 4. Argue That There Is Something Wrong with This Tribunal: Bias, Conflict of Interest, Recusal, and Voir Dire 5. Argue for & Characterization of the Case That Makes Your Side More ‘Appealing &. Argue for Application of the Fuules That Will Result in Your Victory 7. Argue That‘Your Opponent Is Wrong, Too: Gounterclaime ~ 8. Argue That It's None of the Complainant's Business: Standing 8. Argue That the Complainant Is Tainted: in Pari Deliots, Tu Quoque, Clean Hands, arid Contributory Negligence 10 Argue That i's Too Early: Ripeness and Exhaustion of Lesser Remedies 12, Argue That It's Too Late: Stautes of Limitations, Prescription, and Repose 12, #vgue That Your Opponent Must Prove His Case Before You Must Prove Yours: Burdens of Proot 19 Argue That Even If the Complainant Wins, He Deserves Nothing: Remedies and Enforcement "4. Ague That It's Already Been Decided: Res Jusicata, Collateral Estoppel, Repose, afid Double Jeopardy 15. Argue That a Process Was Followed (or Flawed): Process Values Are Real Values B. Arguing From Precedent 1. Consistency and Law 2. The Salience of Precedent 3. Rationes Decidendi: The Essence of Decisions 7 4. Obiter tum and Cheap Talk 5. Exceptioris that Swallow the Rule 6. Breaking Precedent 7. Passive Virtues and Passive Aggression: Not to Decide Is to DecideeB : University of San Carlos School of Law & Governance COLLEGE OF LAW Cebu City 8. Specificity and Delegation “ 9. Citations, Footnotes, and the Pedigree of Information C. Arguing About Facts 1. Determining the Salience of Facts 2. Evidence and Missing Links 3. Causation-of Harm and Negligence 4. Brandeis Biiefs and Scientific Experts 5. Quality of Evidence: The Best Evidence Rule 6. Exolusion of Evidence 7. Estoppel: Blocking Argument 8. Presumptions: Shifting the Burden of Proof Required Reading: er enin, Joel. The Tools of Argument: How the Best Lawyers Think, Argue, and Win, CreateSpace: 2013. Part Ill. Rhetorical Tricks “Losi the implement of persuasion It forme the inprmatur thet gives lgtimacy and ‘repent to juil deine tin tho acid hat washes auay obivection and cheery” ~ Ruggora dl. Aldsert ‘A. Non Sequitur: That Doesn't Follow B. Ad Hominefn Arguments: Discrediting the Source C. Fallacies of Causation: Post Hoc Ergo Propter Hoo, Alfming the Consequent, Correlation Versus Causation, and Omitted Variable Bias D. Inappropriate Inference from Limited Data E, Occam’s Razor and the Exception That Proves the Rule F. When Did You Stop Seating Your Wife? Embedding Assumptions in Questions A. The Seven Deadly Logical Sins 1. The False Comiparison 2. The Bad ExampleFE c-coas recitals Arr Bown tenoe Ignorance as Proof 3, 4. The Tautology 5. The False Choi 6. 7, The Red Herrin ioe . The Wrong Ending Required Readings: + Trachtman, Joel. Rhe torical Tricks (in The Tools of Argument: How the Best Lawyers Think, rank and Win), CreateSpace: 2013. + Heinrichs, Jay. Than you for Arguing, Three Rivers Press: 2007. Part IV. Legal Argument: The Structure & Language of Effective Advocacy. “Fragle as resspni median of reacon tha’ al we have ctanding between ue and the tyranny of mere ill and the enseity of ubrided, urprincipléd, undicilined feling” and liited ae law i ae the expression ofthe institutionalzed ~ duatioe Felix Frankfurter” A. The Syllogism Model. 1. Introduction 2. Syllogisms 3. The Power of S) 4. Legal Argument logistic Reasoning as Syllogisms 5. The Incomplatentess of the Analogy Approach B. The Major Premise A. Introduction B. The Basic Strategy C. Establishing Certai 1. Sources of Aut 2. Direct’Groundi 3. Indirect Groun D. Establishing Certai 1. Tests 2. Step Analysis 3. Factor Analysi 4. A Factor Anali 5. The Utility of L ty of Authoritativeness jority g in Targeted Authority ing of the Major Premise ty in Content is Can Always Be Extracted wer Court Decisions C. The Minor Premise A. IntroductionUniversity of San Carlos School of Law & Governance COLLEGE OF LAW Cebu City B. Establishing Certainty of Authoritativeness 1. Ground Factual Assertions in Evidence 2. Types of Evidence 3. Appeals to Common Sense ©. Establish Certainty of Content by Using Brute Facts 1. Brute Facts and Compound Facts 2, Break Down Compound Facts Into Brute Facts D. Elaborate Key Legal Terms 1. Legal Aspects of the Minor Premise 2. Identity the Key Terms 3. Tell the Judge: “Here's How You Know’it When You See It" E. A Warning: Conclusory Argument F. A Grounded Minor Premise Guides Factual Development D. Summary of the Method Required Readings: " Gardner, James. Legal Argument: The Structure and Language of Effective Advocacy, LexisNexis: 2007. V. The Winning Argument A. Structuring the Winning Argument 1. Building the House the Wolf can’t Blow Down. B. How to Deliver the Winning Argument 1. Releasing the Sound and the Fury C. The Magical Argument 1. Arguing out of the Heart Zone D. The Unbeatable Power of Argument 1. Delivering the’ Knockout Required Readings: * Gerry Spence. How to Argue and Win Everytime, St. Martin's Griffin: 1995.VI. Legal Analysis: The Fundamental Skill A. Rules 1. Enacted Law 2, Case Law 3. Tests » B. Inductive Analysis and Analogical Reasoning 1. Analogical Réasoning 2. Analogical Strategies 3. Broad Analogy C. Deductive Analysis & Rule-based Reasoning 1. Deductive Reasoning—The Syllogism 2. The Structuré of a Deductive Argument Using the Rule-based Reasoning 3. Deductive/inductive Combination D. Policy-based Reasoning and other Considerations 1. Policy 2. Types of Policy Arguments 3. How to Use Policy 4. Other Considerati E. CREAC 1. CREAC Explained 2. The CREAC Argument: Inductive Analysis and Analogical Reasoning 3, The CREAC Argument in a Multi-Issue Problem 4. The CREAC Argument: Deductive Argument or Rule-based Reasoning 5. Fourteen Tips when using CREAC Required Readings: + Romantz, David & Kathleen Elliot Vinson. Legal Analysis: The Fundamental Skill, Carolina Academic Press: 2009.6 ) = University of San Carlos School of Law & Governance COLLEGE OF LAW Cebu City STUDENT RESPONSIBILITIES 1. READING & MASTERY OF THE READING MATERIALS, Analyze the concepts, examples, cases and the tools in the reading materials assigned to you. The students will be evaluated based on their demonstrated preparation and understanding of the reading materials. CLASS PARTICIPATION. Participate in the Socratic dialogues, oral arguments, interactive discussions, group work, role-playing (e.g. moot court) and other learner- centered learning actiyities. Attendance and active participation will be recorded. Quizzes will be administered at the beginning or at the end of the class. 3. MAJOR EXAMINATIONS. Lear how to solve problems and present a case through reflective essays, case analysis, and practical exams (i.e. memorandum writing, closing arguments, debates, moot court). As much as possible, assessment tasks will be aligned with the intended learning outcomes. TEACHING & ASSESSMENT METHODS Learner-Centered Teaching. Research shows that student-centered learning leads to increased student engagement with the content. It also leads to increased student learning and long-term retention. Hence, the instructor will be an active facilitator of learning through activities and strategies that better engage the students (e.g. small-group discussion, Socratic questioning, peer instruction, case studies, problem-based learning, interactive lectures, and role-plays). ‘Some of the student-centered literature may be summarized into the following elements (Lea 2003): + The reliance on active rather than passive learning; + An emphasis on deep leatning and understanding; +” Increased responsibility and accountability on the part of the student; * An increased sense of autonomy on the part of the student; * An interdependence between teacher and learner; * Mutual respect within the leamer-teacher relationship; and + Areflexive approach to the teaching and learning process on the part of both the teacher.and the learner. Constructive Alignment. The course is designed so that the learning activities and assessment tasks are aligned with the learning outcomes that are intended in the course. This is the basic premise of ‘constructive alignment’. This is extremely difficult to achieve. But we will try to design assessment tasks that is constructively aligned with the learning outcomes of this course. An.appropriate assessment task shows how well a student has achieved the learning outcomes it is meant to address and/or how well the task itself has been performed, Some of the possible assessment methods and their objectives include the following (University of Adelaide 2000):* Socratic/Oral Examination. Cope with questions and arguments; show reasoning behind statements of ideas; interact with others; use general/technical language in appropriate manner; express ideas fluently. * Role-play (e.g. Oral Arguments, Debates, Moot Court). Show appropriate attitudes; interact with others in applying knowledge or experience; analyze and synthesize ideas; display creativity or imagination. EVALUATION AND GRADING SYSTEM Oral Exams & Quizzes... 25% Midterm Examination (Written)... 25% Pre-Finals (O.B.E.) 25% Final Examination. 25% Total: ” 100% Passing Grade: 65%uolonpow}u} ‘| HEq1 Introduction ‘What i the difference between lawyers and the rest of us? There is no lawyer gene that makes some folks more argumentative, precise, or abrasive, than ‘others. The distinctive profesional characteristic oflawyers isa critical method of thinking and of argument that has a number of components, This book sets ‘out these components, and thereby demystifies this method of thinking and argument, ‘This book is concerned with the techniques of argument—of persuasion— used by lawyers. The domain of these techniques is not limited to the legel system, but they were developed within the legal system, and they are used intensively within it One of my goals to convince you that these techniques are logical and reasonable, even when they have a result that may seem ‘copnterintuitive or unjust. ‘in order to see the power and utility of these techniques, itis necessary first to consider the legal system, and to understand why these techniques of thinking and argument make sense within that system. T know you want to get to the arguments, bt bear with me. I will make this brief, and the material presented in this chapter will serve as important context and preparation for ‘acquiring the skills of analysis and argument presented afterwards. 1.1 What Is Law? ‘There are all sorts of responses to the question “what is law?” One type of law is reasonably ensy to identify. Statutes produced by legislatures ate definitely Jaws. But there are other types of law, and the things we call “law” can have ‘varying characteristics, Regulations issued by regulatory agencies can have the ppover of aw, and in a common law system like the US,, judicial decisions can ‘make new law. Indeed, one of the things that lawyers do in response to rules asserted by opponents is to examine the rule’ pedigree: where did this rule come from, what was the authority of its author, and does it have sway over this case? A pat response to the question “what i law” is “law is what judges apply to disputes? This response may work for the incurious layman, but two groups ‘might be left dissatisfied, Fist, judges cannot rely on this aphorism. They need to know how to decide what they will apply. Second, those seeking to comply with and utilize the law, including but not limited to lawyers, need to know in advance of adjudication, which rules are part ofthe system and which are not. Legal philosophers and social scientists continue to struggle to define law, but a good working definition of law i the following: formal rules that carry the sanction of the state? Sure, there are a lot of questions and peripheral fssues. What about religious law, or the rules of EBay, or the rules of the National Basketball Association (NBA)? The answer is that itis good to dis- tinguish between circumstances where these non-state rules carry the sanction ‘of the state and circumstances where they do not. In some places, religious law can carry the sanction of the state, and the rules of EBay or the NBA can take advantageof the power of the state if they are incorporated in binding contracts. Itis important to note, though, that the techniques of argument set forth in this book are also usefl in connection with the rules of EBay, the NBA, and other non-state rule-makers, ‘So, we might think of law as set of formal rules that carry the sanction of the state. Then, legal argumentation is argumentation about the content and application of these rules—about when and how each of us can invoke the force of the state. As you can realy se, alot is at stake. 1.2 Why Is Law Important?