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| The Writer’s Corner: Making Policy Arguments II The majority of cases and issues do not
deal with new legal theories or significant alterations or extensions
of existing law. Most cases
involve legal issues and factual scenarios that have at least some
resemblance to prior decisions and established legal rules.
For these types of cases, often the key is to argue how your
case is consistent with the prior decisions and rules.
While this process relies heavily on case law analysis (see previous articles on presenting and
using case law effectively in the October 2003 and March 2004 editions
of this column), policy arguments still can, and often must be made
to augment the case law arguments and effectively present the case.
An effective policy argument in this scenario answers two basic
questions: 1. What is the purpose of the law? DETERMINING PURPOSE If your analysis emanates from a statute,
the first place to look is within the statute itself. Most statutory sections today are passed as
part of an act and will usually include the stated purpose for the
act. For example, the Minnesota No-Fault Act enumerates
five purposes, including the prevention of “overcompensation of those
automobile accident victims who suffered minor injuries by restricting
the right to recover general damages to the cases of serious injury.”1 A court will sometimes explicitly state
the purpose behind the law. While
courts will not do so in every case, if you are analyzing an issue
with a large body of prior case law it is usually well-worth your
while to read all of the cases because at some point the court likely
stated the underlying purpose of the law.
For example: “The purpose of trademark law is to protect the
public from confusion regarding the sources of goods or services and
protect business from diversion of trade through misrepresentation
or appropriation of another’s goodwill.”2 Courts will quite often look to treatises
and law reviews for statements of the purpose of the law and, therefore,
so should the attorney in his or her brief or memorandum. In particular, the Restatements3 and other treatises4
have been frequently cited. Courts tend to rely heavily upon certain
texts or authors and it is a good idea to skim through prior decisions
to determine the favored authors before including a citation from
a secondary source.5 SYNTHESIZING
PURPOSE Another potentially very effective way to
determine the underlying purpose of the law is through a synthesis
of purpose from prior court decisions.
Sometimes the word synthesis takes on an almost mystical holding
when scholars discuss legal analysis, as if staring hard enough at
a pile of cases will inevitably lead to an “Aha” To provide an effective basis for arguing
that there is an underlying theme or purpose behind a court’s decisions
in a certain area of the law, you generally need several case opinions
spread out over many years. If
a certain area of the law has been “hot” for just a couple of years,
it is hard to argue that there is some underlying reasoning behind
a court’s decisions that is not readily apparent from the decisions
themselves. In addition, you
cannot really synthesize purpose from only one or two cases. Once you have located several decisions
that pertain in some way to your issue, you must methodically go through
each case and determine which facts lead to the court’s decision in
each case. Then you can begin to compare the important
facts from each decision in search of an underlying theme — a certain
fact or set of facts that lead to a particular decision. One effective way of organizing this analysis
is to create a matrix with the names of the cases down the left-hand
side and the facts that were important to the court’s decisions along
the top. This provides an easy visual aid to determine
if there are any facts that have consistently led to a particular
decision. A synthesis of materials
from existing cases will not always reveal a clear-cut pattern of
facts, but, when it does, it provides a very strong argument as to
the underlying purpose of the law. CONSISTENCY
WITH PURPOSE The second step is relatively straightforward
and routine for a practitioner who regularly engages in advocacy.
Once the purpose of the law has been established (through argument,
if necessary), that purpose can be treated as just another rule of
law. The advocate then argues
why a decision in her client’s favor is consistent with that purpose.
The tips from last October’s column regarding the placement
of the policy arguments and the structure and style of the argument
apply here. Providing and explaining the underlying
purpose of the law and showing why a decision in your client’s favor
is consistent with that purpose will, when combined with strong analysis
of pertinent case law and statutes, create a fully developed argument
in that majority of cases where you are arguing from established law. NOTES 2. Minneapple
Co. v. Normandin, 338 N.W.2d 18, 22 (Minn.1983). See also 3. See e.g. Elwood v. 4. See e.g. Larson v. Dunn, 449 N.W.2d 751,
756 (Minn. App. 1990). (citing Prosser &
Keeton on the Law of Torts §1, at 6 (W. Keeton 5th ed. 1984) for the
proposition that “The purpose of tort law is to allocate losses arising
out of human activities.”) 5. In addition to the Restatements and Prosser,
noted above, other common treatises cited in Minnesota include Appleman, Insurance Law & Practice; Arthur L. Corbin,
Corbin on Contracts; and Wright & Miller, Federal Practice and
Procedure. These are, of course,
just a sampling and most major subject areas will have one or two
treatises that are commonly cited. KENNETH
R. SWIFT is
an attorney and serves as an instructor in legal research and writing
at Hamline University School of Law. He has also taught legal advocacy and is teaching
employment law in spring 2005 |
