The
Writer’s Corner: Making Policy Arguments
By Ken Swift
Most
law school courses spend a substantial amount of time discussing the
policy issues inherent in the course subject matter.
These broad, philosophical discussions, in turn, often give
rise to interesting discussions (at least to us) among law students
at a favorite watering hole, (and may be used to dazzle non-law school
friends and woo potential mates).
Once lawyers begin practicing, however, these grand intellectual
ideas and concepts are often shoved aside as the lawyer focuses on
established rules and cases and strives to convey the factual details.
This need not, and should not, be the case, as policy considerations
should play an important role in any argument presented to a court.
While
it is difficult to “categorize” types of policy arguments, we will
do so for the sake of structure. The
use of policy arguments can be broadly divided into two basic types
of cases: (1) cases where you are arguing how your case fits within
well-established legal rules and principles; and (2) cases where you
are arguing for or against the adoption of a new cause of action or
a significant alteration or expansion of existing law.
There is not an easy line to draw between the two types of
cases and the reasoning process and development of policy arguments
is similar in both situations. Of
course, every appellate decision alters, in some small way, the existing
common law. In future columns
we will look at some guidelines and tips for creating effective policy
arguments for the two case types noted above.
In this column, we will review some of the basic principles
that govern the structure, use, and style of all policy arguments.
Not
An Equity Argument
A
good working definition of a policy argument is an argument that addresses
the implications of a possible decision in terms of society as a whole,
a significant segment of society, or a specific industry.
On the other hand, equity arguments focus on what is fair to
a specific litigant in the case. While
equity arguments may occasionally have their place, broad policy arguments
are generally more effective because policy arguments allow a judge
or a panel of judges to make a decision based upon the broader good
rather than simply a preference for one party’s predicament.
The difficulty lies with our natural tendency to want to always
be advancing our client’s position.
A good policy argument requires the attorney to “step back”
from a client-specific argument and look at the larger ramifications
of the decision.
For
example, suppose you are defending an employee against a claim by
a former employer that she violated a noncompete
agreement. After working for the company for six months,
the employee signed the agreement in exchange for a bonus of only
a couple of hundred dollars and under an implicit threat that she
would be fired if she did not sign. Your argument is that she did
not receive adequate consideration, as is required when a noncompete
is signed after commencement of employment.
An equity argument might read as follows:
Finding for the employee here is fair because
she signed only because of the threat of termination and not due to
a true meeting of the minds.
A
policy argument would likely be more effective and yet still convey
the same basic message:
Finding that no consideration existed here
will greatly benefit all employees in Minnesota and serve to further
the basic purpose of the requirement of consideration for noncompete
agreements signed after the commencement of employment. Employers
would be required to provide a significant inducement to employees
to sign noncompete agreements rather then offering a token benefit
along with the implicit threat of termination or demotion.
The
policy argument places the issue in the broader societal picture and
is likely to be more effective than a basic plea for fairness.
Use
in Trial Courts
While
trial courts obviously have no binding authority, you should not eschew
policy arguments in that forum. A
trial court judge will still want to look at the broad societal implications
of her decision and will want to make a decision that is consistent
with the underlying purpose of the existing law, the two basic purposes
for making policy arguments. Making
the trial court judge aware of the policy implications of her decision
is particularly important if you are addressing an issue that will
have a standard of review at the appellate court level of anything
other than de novo. If the trial court’s decision is going to be
given any deference at all by the appellate courts, the trial judge
must be made aware of the possible policy implications of his or her
decision.1
Placement
and Support of the Arguments
Too
often attorneys treat policy arguments as somehow different from their
case law and statutory analysis arguments.
The policy arguments are often tacked on at the end of the
arguments section and include the sources of support right within
the arguments themselves. Instead, your policy arguments should be woven
in with your case law and rule-based arguments. For example:
Like the employee in Davies, who received
training and a promotion in exchange for signing a noncompete
agreement, Mr. Jones received four weeks of vacation
for signing. Further, finding adequate consideration here is consistent
with fundamental contract law principles and will benefit
the Minnesota
economy ….
It
is also beneficial to include the support for your policy arguments
in your rule of law, instead of saving it to immediately precede your
policy arguments. As will be discussed more fully in subsequent
columns, support for your policy argument may come from a variety
of sources, including statutes, case law, and treatises.
Providing this support in your rule of law allows these principles
to filter down through your entire analysis.
Indeed, you may even find that the policy rules become the
theme for your entire argument.
Structure
and Style
Because
policy arguments are at least somewhat philosophical in nature, an
attorney can easily find himself writing
freestyle and using a policy argument section to show his intellect,
or sometimes even to espouse his views on tangential matters.
However, a disciplined approach is needed in this as in any
other legal argument. You should work to make your policy arguments
as concise as possible and as well-supported by legal authority as
possible. Avoid repetition;
no matter how brilliant your insight, the judge need only read it
once. Finally, while you certainly want to be a strong
advocate for your client, remember to be reasonable. It is unlikely that
society would suddenly collapse if your opponent were to prevail,
nor is it likely that the world would be rid of evil if your client
were to triumph. A reasonable, focused prediction of the effect
of the decision will be most persuasive.
Following
some of these basic guidelines will help create argument sections
that not only analyze cases and statutes, but also integrate the broader
public policy implications of the decision.
And who knows, you may still be able to dazzle your nonlawyer
friends with your philosophical intellect.
NOTES
1. See e.g. Valentine
v. Lutz, 512 N.W.2d 868, 871
(Minn. 1994) (the court first noted that the statutory stated purpose
of juvenile law is to “preserve and strengthen the child’s family
ties whenever possible and in the child’s best interest” and then
held that a trial court’s decision as to who may intervene in a chips
proceeding would not be overturned absent an abuse of discretion).
KENNETH
R. SWIFT is an attorney and serves as an instructor in legal research
and writing at Hamline University School of Law.
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