SYLLOGISM MODEL
assign disparate things to their proper legal categories
Syllogistic argument
- provides the requisite appearance of certainty
- it achieves this effect by exploiting human intuition
Syllogisms
- a statement of logical relationship
3 parts:
1. Major premise- usually a broad statement of general
applicability
2. Minor premise- a narrower statement of particular
applicability
3. Conclusion- follows logically from the major and
minor premises
Classic example:
1. All men are mortal
2. Socrates is a man
3. Therefore, Socrates is mortal
2 features of syllogism:
1. Form
a) Major premise: “All men are mortal”
- states a general rule or proposition; it admits of no
exception
b) Minor premise: “Socrates is a man”
-much narrower in focus
2. The way the conclusion follows logically from the premises
- Intuition alone not only furnishes the conclusion of the
syllogism, but does so with a force amounting to compulsion
The Power of Syllogistic Reasoning
Transitivity principle- if two things are equal to the same
thing, they they are equal to each other
- the terms of syllogism correspond to the terms of the
transitivity principle
- is an axiom; it is something we believe, but cannot exactly
prove
- to deny the syllogism’s conclusion is to deny the world itself
as we understand it
If your listeners accept your premises, then they MUST accept
your conclusion
-the only way to refute a syllogistic argument is to dispute its
premises
- a syllogism is false because the major premise is false, not
because of any defect in its structure
Legal Argumetns as Syllogisms
> The only such rule of any significance:
Every legal argument is cast in the form of syllogism
It generally takes the following form:
> major premise- a statement of law
>minor premise- a proposition concerning the application of
the law to the particular circumstances of the case at hand
Incompleteness of the Analogy Approach
Analaogy- is a statement of logical relationship
-compares two things and declares that they are alike
- purpose in legal reasoning: to help the decision maker
- they play a more limited role in legal argument
- their inability to answer the question, “so what?”
- it takes syllogism to provide the answer to the “so what”
challenge
- an analogy is a way of defining a premise of a syllogism; by
itself, it is not an argument but merely a small piece of an
argument
>The analogies between the case at hand and the cases cited
as precedent serve only the secondary function of supporting
the premises of this syllogism. Thus, the analogy is not the
argument; the syllogism is the argument
The Major Premise
-The most important variable by far in a legal dispute
concerns the characterization of the law and facts
The Basis Strategy
- to create the impression that the judge has noc hoice
Where the major premise is concerned, the advocate
achieves such an impression by creating an impression of
certainty in the law
Two distinct and equally important aspects to the
establishment of the impression of certainty in the law:
1. Certainty of authoritativeness
2. Certainty of content
Establishing Certainty of Authoritativeness
Sources of Authority
?Who has the authority and how is it expressed?
A. A directly sueprvising court, as expressed in controlling
precedent on point
B. The legislature, as epxressed in a statute
C. The people, as expressed in a constitution
*judges often perceive certain non-binding sources of
authority to be almost as compelling
*the pronouncements of other sources he or she considers
worthy of respect---various Restatements of Law---But any of
these non-bindng sources of authority is always less
persuasive than the three binding sources mentioned above
Direct Grounding in Targeted Authority
- to ground the premise, the advocate must show some sort
of link between the major premise and the pronouncement
of some authoritative source of law
- the advocate must show that the major premise says
nothing other than what some higher authority has already
decreed law to be
- you must also ground the major premise by establishing its
legal certainty
Cite Case Authority
- by citing the case in which the pertinent language appears
- In general, through, it is sufficient to paraphrase the courts’
language
Quote Statutes or Cite Their Interpretations
- If the target wource of authority is a statute, quote it.
Because a statute to law in a way that judicial opinions are
not, you present the law authoritatively merely by quoting
the statutory language
“plain meaning rule”
- thus, the authoritativeness of a mjor premise based on
statutory law can be powerfully established merely by
quoting the statute itself and referring the court to the plain
meaning rule
Use Multiple Sources of Authority
- The strongest way of all to show authoritativeness
Indirect Grounding of the Major Premise
- But what if the major premise that we wish to use hsa not
been specifically proclaimed in so many words by an
authoritative legal source?
- if it is to persuade a court, the major premise must still be
grounded in some authoritative legal pronouncement. If the
premise cannot be grounded directly, however, the only
alternative is to ground it indirectly
- The ungrounded major premise of the argument is
converted into the conclusion of a new syllogism
-the major premise of the new syllogism should be a directly
grounded statement of the law
Establishing Certainty in Content
- Establishing certainty of authoritativeness creates the
impression that the court has received instructions from an
authoritative source, but this is not enough
- The key is to formulate you major premise, using the
language of tests, steps and factors. A legal premise
formulated in any of these ways carries with it an air of
precision and authority that simply cannot be sustained in
any other way
Tests
- a formulation of the law expressed as a set of discrete
conditions
- like cases, statutes can also provide the advocate with tests
Step Analysis
- a court or statute provides a methodology of legal analysis
by setting out authoritatively a define series of analytic steps
that a court must take to reach the correct result
Two-step inquiry:
1. The question whether Congress has directly spoken to the
precise question at issue
2. Requires the court to determine whether the agency’s
interpretation is permissible
> the step analysis thus provides lower courts with a formula
that they can follow mechanically, thereby enhancing the
impression of legal certainty that the advocate wishes to
convey
Factor analysis
- the court or legislature lists a series of factors that are
deemed relevant to the outcome of a case without specifying
precisely how the factors fit together
A Factor Analysis Can Always Be Extracted
- Even if no amount of searching turns up language that you
can plausibly argue states a test or step analysis, you can
almost always extract a factor analysis from a judicial opinion
- a judicial opinion can never be about nothing
The Utility of Lower Court Decisions
- they hear many more cases and are less concerned with
providing broad guidance on an abstract level
- our businesslike tactic is to develop as many concrete tests
and step analyses as possible so as to standardize and speed
up judicial decision making
- lower court decisions are often a better source for the
specific tests that the advocate needs to create the critical
impression of certainty in the law’s content
THE MINOR PREMISE
Two differences:
1. a minor premise almost always deals with facts
3. The minor premise of a legal argument is usually not a pure
assertion of fact but a combination of law and fact
Despite these difficulties, the advocate can generally create a
strong impression of certainty in a minor premise by:
1) Grounding it in evidence
2) Elaborating the meaning of key legal terms
Establishing Certainty of Authoritativeness
1. Ground Factual Assertions in Evidence
- creates an impression of certainty
- like citation to legal authority, citation to evidence
constitutes a representation by the advocate that the cited
source says in substance what the advocate has said in the
immediately preceding text
- One way to ground this proposition indirectly might me to
create a new syllogism grounded directly in a combination of
evidence from the plaintiff and the expert
- As with any premise, the authoritativeness of factual
assertions can be enhanced through multiple grounding
Multiple evidentiary grounding- strengthens the premise by
increasing the chances that the court will accept it as true
Types of Evidence
What type of evidence should the advocate offer to support
the factual assertions in a minor premise?
1. Motion to dismiss: the allegations of the complaint must
be taken as true and constitute the only source of evidence
2. Summary judgment motion: advocate may rely on any
evidence that would be admissible at trial
3. Post-trial brief: any evidence admitted at trial, including
testimony
4. Factual assertions do not require additional grounding in
evidence because they are so obviously true that any attempt
to support them would seem ludicrous (“the sky is blue”)
- technically, such facts are established by judicial notice
Appeals to Common Sense
Lawyers appeal to common sense primarily in two instances:
1. An appeal to common sense may represent a simple
interest from facts that are unstated because they are
obviously true pr are otherwise undisputed
Ex. If it rains today, the picnic will be cancelled
2. An ill-defined class of cases in which the court interprets
the law or deliberates on legal policy in a way that requires it
to make factual assumptions about the world
Ex. Warrant first before searching any place
>From the advocate’s pov, these kinds of appeals to common
sense are nothing more than factual assertions that either
are not or cannot be grounded on evidence; however, they
can be made more persuasive if supported by evidence
Establish Certainty of Content by Using Brute Facts
Brute Facts and Compound Facts
Brute facts
- facts that are about the physical world--what someone did
or said or perceived, or the physical location or condition of
an object
- they are first-order reports concerning physical reality
-intrinsically more persuasive
-listener may mistrust the speaker either because he thinks
he’s a liar or an unreliable reporter
Compound facts
- combine reports concerning the physical world with
inferences based on those facts
-listener might reject an assertion of compound fact for
reasons having nothing to do with the speaker’s
trustworthiness
>For these reasons, the advocate should fashion minor
premises out of brute facts whenever possible
Break Down Compound Facts into Brute Facts
- As always, the degree to which a premise should be
considered grounded depends upon context
*If in circumstances of the case the court is likely to accept
the federal guidelines as authoritative then there is little
reason to go on
*If on the other hand, the conclusions contained in the
guidelines themselves require justification, we must continue
the process of breaking down the compound facts into their
brute constituents
As a general rule, however, when you are unsure about
whether a particular compound factual statement is fully
grounded, the best practice is to err on the side of caution
and break it down more completely into brute facts
Elaborate Key Legal Terms
Legal Aspects of the Minor Premise
- The minor premise of a legal syllogism is rarely a pure
statement of fact. Because the minor premise applies law to
fact, it usually contains elements of both.
- Because syllogisms are based on the transitivity principle,
very premise of every syllogism declares 2 things to be
equivalent
Legal syllogism
- the minor premise always declares a particular kind of
equivalence: it asserts the equivalence of a legal concept and
a set of facts
However, legal rules and concepts are often vague and
abstract; how can two such different things be shown to be
equivalent?
2 ways:
1. Either we must bring the facts up to the level of
abstraction and vagueness of law
- unacceptable because facts are more persuasive when they
are concrete, and the advocate’s job after all is to persuade
2. Or we must bring the law down to the level of
concreteness of the facts
- it follows that somehow, we must present the pertinent
legal concepts contained int he minor premise so as to make
them seem every but as concrete as the facts themselves.
The advocate can do this by elaborating the key legal terms
Two step process of elaborating the key legal terms
1. The advocate must identify the critical terms
2. The advocate must ground these legal terms in concrete
legal explanations of their meaning
Identify the Key Terms
- the advocate must always elaborate the common term---the
legal term appearing in the minor premise that also appears
in the major premise
- if the advocate is to demonstrate persuasively that these
terms have been correctly applied to the facts of the case,
the advocate must clarify their meaning
Tell the Judge: “Here’s How You Know It When You See It”
- After identifying the legal terms in need of elaboration, the
advocate must perform the elaboration
-For any legal term to be elaborated, explain to the judge:
“Here’s how you know it when you see it”
A Warning: Conclusory Argument
- by far the most common error in legal advocacy
- it is conclusroy when the advocate fails to spell out each
step in his or her reasoning, or makes assertions about the
law or the facts without backing them up---IOW, a conclusory
argument is one that is inadequately grounded
- no matter how internally logical and externally truthful it
may be, it will always be unpersuasive because it fails to
demonstrate why the court should accept its premises as
true
In terms of structure of the argument, conclusory argument
results from inadequate grounding of the minor premise. And
in most cases, advocates fail to ground the premise
adequately because they incorrectly believe that their
reasoning will be so obvious to the court that no further
explanation is required
Reasons:
1. They believe that the judge is so knowledgeable and
so intelligent that thorough grounding of the minor
premise is superfluous
2. Their erroneous assumption that the truth of their
premise is self-evident
11. Elaborate key legal terms in the minor premise by
grounding them indirectly in explanations of their legal
meaning
12. Continue in the same manner until all premises are fully
grounded
COMMON TACTICS AND RHETORICAL TECHNIQUES OF
EFFECTIVE WRITTEN ADVOCACY

A Grounded Minor Premise Guides Factual Development Presenting the Law

- is not only essential to a persuasive argument in the
advanced stages of a case, but can also help to advocate in
the earliest stages of preparation.
- a grounded minor premise provides a blueprint for the
advocate’s investigation and collection of the evidence

SUMMARY OF THE METHOD

1. Determine you client’s alignment int he case (generally

plaintiff or defendant)
2. Identify the legal principles relevant to the case (e.g.
contract law, tort law, equal protection)
3. Generate a set of presumptive positions by taking the side
favorable to your client or unfavorable to your opponent on
every potentially relevant legal principle
4. From the set of presumptive positions select your actual
positions by eliminating any presumptive positions that re
false, unpersuasive, excessively complex, unsupported by the
facts, or unsuitable for any other reaosn
5. Formulate your position on the relief sought int he case.
Where feasible, make this position the centerpiece of your
argument. Where the relief in issue is not the relief ultimately
sought in the case but the relief sought in a particular
motion, formulate your position on the relief sought in the
motion
6. Convert each position into the conclusion of a syllogism
7. Construct the premises of each syllogism using a recursive
process of trial and error. This process should be guided by
the following considerations:
a) The premises must yield the desired conclusion
b) All terms of the syllogism must match
c) The specification of any two terms specifies the
third
d) The premises must be true
e) Major premises should use the language of tests,
steps or factors; and
f) Minor premises should assert brute facts
8. Ground the major premise directly in controlling authority .
If the major premise cannot be directly grounded, ground it
indirectly by converting the premise to the conclusion of a
new syllogism and constructing a new set of premises that
can be directly grounded. Continue this process until all legal
premises are directly grounded in controlling authority
9. Ground factual aspects of the minor premise directly in
evidence. If the premise cannot be so grounded, ground it
indirectly by converting the premise to the conclusion of a
new syllogism and constructing a new set of premises that
can be directly grounded. Continue this process until all
factual assertions are directly grounded in evidence
10. Break down assertions of compound fact in the minor
premise into their constituent brute facts by grounding them
indirectly in evidence of the underlying brute facts