Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Saturday, February 5, 2022

Framing the Crux of Your Arguments

Legal folks are always disagreeing. But what many people forget is that you have a lot of power in how you frame a disagreement, or dispute, or any point, really. A slight tweak in how you frame things can change audiences’ perspective entirely.

Framing is magic. A word here, a phrase there, and our readers respond differently to the same information. When I say framing, I mean making language choices so that a standard, an issue, a rule, or a situation sounds more favorable to your side (while still accurately relating the details). This is a go-to tool in many contexts, so let’s look at some simple ways to frame a point favorably.


First: Emphasizing favorable facts (with word placement, places of emphasis, extensive details, context, or style). This tool has you first step back and decide: What helpful facts are relevant to this point or issue? Then you make smart decisions to highlight those good details, insert them before the bad facts, and your readers then focus on the good.


Notice here how just by focusing on different details when relating the issue, our readers take away a different perspective (both are accurate details, though—that is key to your credibility). First, we focus on missed deadlines in the past (a defendant’s perspective). Second, we focus on this filing, which the plaintiff actually filed early. Both facts are true, but by picking one over the other to highlight in framing the issue, our reader’s perspective shifts.


"The plaintiff blew the deadline six times before asking for an extension."

vs.

"The plaintiff sought an extension to this deadline weeks before it was due."


Second: Using modifiers to change the focus. Modifiers like only, unless, always, and so on make it easy to frame issues for readers. Simply find the most favorable perspective and insert the proper modifier to make the point sound more or less compelling. Notice here how “need only” and “unless” controls the reader’s perspective to make things sound harder or easier:


"The government need only show a single mistake to win."

vs.

"Unless the government can show a bona fide mistake, it loses."


Third: Using dependent/independent clauses to change the focus. This tool has you put the good stuff in the independent clause and the bad stuff in the dependent clause. Even a small change like this can make a big difference.


"Although the court never ruled on notice, it stated that 'notice was surely lacking in this case.'"

vs.

"Although the court mentioned that notice may be lacking, the court never ruled on this issue at all."


Fourth: Inoculate readers against bad facts or authorities. This is a key tool. Simply frame an issue or point so that it already deals with opposing points or makes them irrelevant. Notice how in this example, the author is framing the point to make opposing facts irrelevant or less compelling:


"The government need not allege a financial loss to pursue a qui tam claim here." [knowing that a key argument on the other side is the lack of financial loss].


Fifth: Recast opposing perspectives or arguments accurately but ripe for your counter. With this tool, you take an opposing point and reframe it. But be careful: You can’t misrepresent opposing points or your credibility will take a hit. Often it helps to start with some faithful quotes, then a reframe that is fair but adds a favorable perspective.


"The plaintiff argues for a standard requiring 'little to no actual intent.' In other words, plaintiff seeks to flip a decade-old standard with no authority or other legal support for doing so."


Sixth: Consider other tools like broadening or narrowing categories, using hypotheticals, crafting slogans, and more. Many other tools will help you reframe—this is a skill worth continuously honing. For example, you can urge the court to put a point into a larger category, or a narrow one, or emphasize a general rule over a specific one, and so on:


"The plaintiff urges the court to adopt a 'breach and buyout' approach to interpreting government contracts. But the general rule has always been that these sorts of contracts are special and that buyout is not an option."

https://lawprofessors.typepad.com/appellate_advocacy/2022/02/framing-the-crux-of-your-arguments.html

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