Legal argumentation is one of the most important tools in a lawyer's work. Through compelling arguments, they defend their position throughout the entire legal process and provide the best service to the client.
"To argue means to weave arguments, to present the reasoning that constitutes an argument."
In a legal sense, the word is used primarily transitively, in terms of alleging, bringing forth as an argument, and it is a specific way of reasoning that proceeds through successive questioning ,” according to the illustrious doctrine of Sampaio.
Similarly to what the scholar highlights, lawyers today need not only to know the law, they need more: they need strong argumentative skills – to achieve effectiveness in providing their services.
In this way, we will uncover 5 points to help improve your legal argumentation and, consequently, the legal outcome of your work.
What are the types of legal arguments?
In short, arguments are linguistic resources designed to persuade. Such legal arguments can be classified as: pro-thesis, authority, opposition, analogy, and cause and effect.
Let's look at each of them.
PROSTHESIS
One of the tools of legal argumentation is the pro-thesis argument, whose characteristics are derived from the verified facts.
A suggested structure for developing it is: Thesis + because + and also + furthermore.
For example: Fernando caused moral damage to Amélia because his conduct caused very serious psychological harm that resulted in acute depression, and also because he acted cowardly against a person who had been his partner for years. Furthermore, he already has a long history of toxic civil conduct.
AUTHORITY
Such legal argumentation lends prestige to the actions or judgments of a person or group of people, sometimes even constituting a source of law.
It is worth highlighting, for example, the legislation, doctrine, principles, precedents, and case law of the courts that can play this role, that is, of legal influence and – even – a source for the application of law.
OPPOSING ARGUMENT
This third tool of legal argumentation initially presents arguments that contradict the viewpoints being defended.
Then it treats them as possible conclusions and, subsequently, presents the viewpoints that are in fact contrary to the respective proposition.
The impact of this is that such a strategy can anticipate potential rhetorical exercises , thereby weakening the other party.
ANALOGY
This third tool of legal argumentation states that the justice system must treat the same situations equally , that is, ensuring legal certainty.
For example, citations of case law are the most common instances of the use of analogy.
The consequence of this is greater efficiency, since the judge generally feels influenced in some way to decide based on decisions already made in previous situations.
CAUSE AND EFFECT
Finally, this legal argument aims to highlight the direct consequences of specific actions taken by the parties.
When it comes to civil liability and criminal law, it is an excellent choice of argument to establish a causal relationship between action and result.
How can legal argumentation be improved?
Here, we will examine some techniques in detail.
1. Participate in informal discussions.
First, participate in informal discussions with friends and family. Informal debates among friends and family are the best way to practice your debating skills.
Ultimately, you need to think fast, connect ideas and techniques with diverse facts, know how to properly defend your position, and have reasons to convince the other party and negotiate.
2. List the possible defenses available to the opposing party.
Anticipate the other party's defense arguments, study them carefully, and know where to direct them.
After determining the desired outcome, the lawyer can then organize their ideas. In conclusion, clearly outline the path that will allow the judge to reach a favorable decision.
If possible, write down your ideas and thoughts and reflect on how you can still improve them.
According to the esteemed lawyer Marcelo Ferro, recognized as Lawyer of the Year 2020, in an interview :
"Litigation is the art of persuasion . Persuading someone requires technique, skill, and, above all, keen observation to understand which of the various arguments might convince that judge, whether they are more conservative or more liberal."
3. Create a mind map.
For those who struggle with legal argumentation, a good suggestion is to use a mind map. This technique of working with diagrams helps connect ideas and concepts to central problems or issues.
Therefore, the main function of a mind map is the generation, visualization, and classification of ideas. It is especially useful for organizing information and weighing decisions for effective legal argumentation.
4. Clear language
The days when refined language, Latin maxims, and inverted sentence structure made lawyers are long gone. Clear, specific, and concise language tends to gain more attention in the congested judicial system.
Therefore, no matter who you are, try to keep your communication clear. This is one of the central elements of good reasoning, which can bring the best results to legal argumentation.
5. Avoid aggression
Good arguments almost always prevent aggression, and the new version of the CPC (Brazilian Code of Civil Procedure) gives more attention to the role of mediation and arbitration.
Therefore, lawyers who find it difficult to communicate and develop good legal arguments should commit to improving through the frequent use of these skills.
In light of the above, it is essential to note that legal argumentation directly impacts the service provided by legal professionals.
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