Sunday, November 3, 2013

Two Questions to Make Your Analysis Complete

Have you had professors tell you that you are not showing the steps in your reasoning?  Two questions are the key to overcoming that weakness.  The first is "why is that true?" and the second is "why does that matter?"

Every expert legal reader has both questions lurking in her mind at all times.  Lawyers are trained to be skeptics when it comes to legal assertions, so they always demand to know why an assertion is true and why the assertion is relevant to the problem to be solved.  Legal writers expect that skepticism and tailor all of their assertions to it.

If you want to become an expert legal writer, teach yourself to ask those questions constantly.  In practical terms, it means to ask those questions after every sentence.  At first, you may have to ask them during the revision process.  Eventually, they will become second nature, even as you are composing the first draft.

Consider the following application of the definition of imputed intent to commit a battery.  The definition states that an actor intends to commit a battery if he acts with the knowledge that a harmful or offensive bodily contact is substantially certain to result from his act.

"When Bill rolled the scaffolding away from the roof, he satisfied the element of intent and thereby committed a battery."

The assertion may be true, but most of its logic is left to the reader to supply.  The reader cannot be trusted to supply that logic.  Compare that answer to the one below.

"When Bill rolled the scaffolding away from the roof, he committed a battery. Because he saw Joe begin to step backward onto the scaffolding and then look away, Bill had to know that Joe would continue his movement toward the scaffold absent a warning that it was being moved. Bill, therefore, knew that if he moved the scaffolding Joe would step into mid-air and fall two stories to the driveway below. Despite his claim that he simply intended to move the scaffolding to a more convenient spot for his own work, Bill moved it with the knowledge that Joe was substantially certain to sustain a harmful physical contact with the driveway. Bill, therefore, had the requisite intent to commit a battery against Joe."

Notice that each sentence answers one of the two questions about the previous sentence until each question is fully answered.

"When Bill rolled the scaffolding away from the roof, he committed a battery. [Why is that true?]. Because he saw Joe begin to step backward onto the scaffolding and then look away, Bill had to know that Joe would continue his movement toward the scaffold absent a warning that it was being moved. [Why is that true? The answer is so obvious it need not be stated]. [Then, why does that matter?]. Bill, therefore, knew that if he moved the scaffolding Joe would step into mid-air and fall two stories to the driveway below.[Why is that true? Again, too obvious to state]. [Then why does that matter?]. Despite his claim that he simply intended to move the scaffolding to a more convenient spot for his own work, Bill moved it with the knowledge that Joe was substantially certain to sustain a harmful physical contact with the driveway.[Why does that matter?]. Bill, therefore, had the requisite intent to commit a battery against Joe."

Learn to ask those two questions after every sentence, and you will find that you will necessarily fill in the steps in your logic, rather than forcing the reader to fill them in for you.

Dan Weddle

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