This article is written by Suryansh Verma, RMLNLU, Lucknow.
“I busted a mirror and got seven years bad luck, but my lawyer thinks he can get me five.” – Stephen Wright
This quote aptly explains the skills that a good lawyer should have to get his client out of trouble even if he is guilty of committing a crime. Creating compelling arguments and presenting it before the Hon’ble Judge is one of the most essential skills that a good lawyer should have. In this article, we shall focus on how to come up with compelling arguments for your clients in the court.
“Persuasion is the civilized substitute for harsh authority and ruthless force” R.T. Oliver.
Being persuasive in your submissions is what matters the most for being a good lawyer.
HOW TO FIND AN ARGUMENT?
Arguments are what make the crux of the whole case. If you fail in making them compelling and persuasive, you will not be able to convince the judge and that will make you lose the case. For framing an argument regarding your legal issue, you need to have in-depth knowledge on the subject matter. You also need to know the laws which govern that particular case. For making a compelling argument in the court, you’ll need tact, knowledge and the ability to see both sides of the debate.
Firstly, before framing arguments what you need to do is that you have to identify the legal issues. The issues around which the subject matter of your case revolves are legal issues.
Then, you need to apply the law to the facts of the case. Secondly, you need to see what section of a particular legislation applies to your case.
Thirdly, read up commentaries on that section for a clear and better understanding. You will also find arguments with legal backing from various precedents given by the Courts there. In this arena of finding arguments, reading matters a lot. If you want to find good arguments for your case, you’ll need to have that particular skill-set through which you would apply your research to the facts of the case. You shall be able to make compelling arguments after doing so.
And, lastly, it depends upon you as to how you can structure the arguments to bring out the decision of the case in your favour. Certain arguments are fact related as there might be certain facts in the case which you could use to make your argument sound more persuasive.
KNOW THE SUBJECT MATTER AND THE LAW GOVERNING THE CASE THOROUGHLY
In order to make a compelling and persuasive argument in the court, it is essential to know the subject matter concerned in the case that you have taken on the behalf of your client. This means that you need to know all the ins and outs of the case in order to overthrow your opponent in the court. You need to go through the law governing the case profoundly. Knowing that particular law extensively will not only help you in coming up with persuasive arguments, but it will also help you in figuring out the arguments which the other side might make. In furtherance of this, it would also help you in making counter-arguments. If you’re not thorough with the law or the subject matter of that case, the opposite side will definitely find the weaknesses in your argument which can end up in your losing the case.
HOW TO MAKE THE ARGUMENTS COMPELLING?
- The first and the foremost step to make an argument is to provide that argument with a persuasive legal backing and make the best use of authorities that you’ve referred to in the case. While preparing the sheet of arguments that you’re going to present in front of the judge(s) you need to make use of certain case laws and authorities that support your case. For making an argument sound more persuasive, you need to cite those authorities in the argument that are most relevant to your case.
- Citing authorities just for the sake of it will not leave a good impression on the judge and he/she will not be able to understand your issue, as well as the analogy that you’ve drawn between the issue and the authority.
- Moreover, the arguments need not be very bulky. You need to present them in a very brief manner so that it is not taxing for the judge(s) to listen to them.
- You could put in various practical examples which would help in furthering the case of your client.
- Think logically and draw analogies between the subject matter and the law. Your arguments should be logical and, in a sequence, to make them more compelling.
HOW TO RECOGNISE AND DISCARD WEAK ARGUMENTS
This part of making the arguments more compelling is really necessary as making weak submissions before the court can make you lose the case. Thus, you need to identify where a particular argument is weak. A strong argument is one which has a good analogy, is logical and is supported by facts or law in certain cases. A weak argument is one which is based on poor analogy and fallacies. Weak arguments are those, which do not have legal backing supporting them. Arguments which are out of context, as in which do not concern the subject matter of the case and might mislead the bench are also weak arguments and need to be discarded. These are some ways by which you recognize a weak argument and then you might discard such arguments for refining your oral submissions.
IDENTIFY THE ISSUES TO BE DEALT WITH AND RESEARCH ACCORDINGLY
Once you’re done with analysing the subject matter of your case and also knowing the law profoundly, you will be able to have a good idea about the issues and the sub-issues. This is the part where the crux of the case lies. So, you’ll have to be very specific and particular while making your issues and their sub-issues.
After making the issues and their sub-issues, you start with your research for knowing the ins and outs of the case.
You need to be thorough in your research as well. For making compelling arguments, you’ll need to do this part with utter diligence. This is only because while researching, you might find certain precedents which would support your argument, making it compelling and persuasive. For example– If you find a case in which a court has enunciated a leading principle then you can cite that particular case and draw an analogy to make your argument compelling and persuasive.
For another instance, if you need to understand a principle of law which is relatively misunderstood, then you can cite that case and present your understanding of that principle to make your argument crispier and more appealing.
Doing this would not only strengthen your case but will also help you in making arguments which are backed by legal principles. You also need to cite judgments which have already been decided by a court. Such judgments are also binding upon them. This will further enhance your case by making the arguments sound more compelling and persuasive.
THE OPENING SENTENCE OF YOUR ARGUMENTS SHOULD MAKE AN EFFECT
As it goes without saying, the first impression is the last impression. Thus, this means that we do not get to make a second first impression. It is the same in the Court as well. Your opening sentence, or the way in which you begin to present your arguments also matters a lot. Most of the advocates fail to make an effect with their opening sentences.
You need to grab the judge’s’ attention in order to make your case look stronger in front of him. However, dry the case might be, you can always pick up and speak something out of the box to make your arguments more compelling. Writing an opening statement might be tougher and a more time-consuming task than all your other tasks combined. At the same time, it is extremely crucial as it might come out to be rewarding and fruitful to you.
CREATING A ROADMAP
After acquainting the bench with the issues at hand, give them a roadmap as to how you’re going to channelize your arguments for presenting it before the Court. This in turn, creates clarity in the minds of the judges and they understand how the issues are going to be addressed by you. For instance, if they need your input on a particular issue or if they believe that there is some issue that needs to be addressed and resolved prior to the other issues, they can ask you to present that issue first. This also ensures that you do not miss out on any of your arguments and if there is a paucity of time, most of the important arguments would have already been heard by the bench.
If you have given down the roadmap to the judges, everything eventually becomes really easy for you to present it before the judge and also for the judge to understand it. For an instance, you can also use this technique in answering judge’s questions and if you have multiple responses, you can tell the judge before you start listing them.
DON’T LET EMOTIONS DRIVE YOU –
It is natural for people to be driven by emotions when they come across something which they inherently care about, but for an advocate, the strength for his arguments lies in logic and reasoning. Therefore, you cannot let your emotions control your arguments.
For an instance, if you let your anger control yourself before making an argument, you will not be able to make it a compelling one. You should look back again at your subject matter to find any weaknesses in the argument of the opposite party.
It is usually a tactic which is used by your opponent to make you angry in an argument and make you commit mistakes. In turn, these mistakes make you lose credibility in your arguments. So, this is when you fail to make compelling arguments which might make you lose the case.
KEEP THE SUBJECT MATTER TO THE POINT
The arguments that you’re putting in front of the bench should be to the point. If you circumvent the legal issue involved, it would also make the issue for the judge quite difficult to understand. So, the arguments that you present should be comprehensive, but you should also be very precise and clear in your arguments.
YOUR HEAD SHOULD BE CLEAR –
Before making your arguments, you need to be extremely clear about the subject matter contained in your issue. If you anyhow get distracted from the issue, then making compelling arguments might become extremely difficult. Your head should not be clouded with thoughts that are irrelevant and unimportant for your case. For instance, presenting your arguments, your head should not have doubtful thoughts while arguing before the Court. If the Judge at a point of time asks you a question about your legal issue, your head should be clear while answering the question. You should not fluster while making the arguments or answering the judge’s questions.
YOU SHOULD BE A GOOD LISTENER
A good lawyer in the court is also a good listener. Listening and acknowledging the opposite side while the other side is arguing shows that you understand the opposing argument. When you understand the opposing argument, you could give counter-arguments and make your case stronger.
WHAT DO FAMOUS INDIAN LAWYERS HAVE TO SAY
There was a YouTube interview with Mr. Ram Jethmalani in which he had advised lawyers to always speak in a clear tone and put the point in front of the judges in a clear and simple way. “Avoid unnecessary histrionics and be straightforward in your submissions”, he said.
Another stalwart of law, Mr. Fali Nariman in his autobiography ‘“ Before Memory Fades’’ has set out some priceless & practical tips on how lawyers must prepare for and argue important cases. He says that “when you argue a case in court, be clear and precise, not confused. Your mental outpost must flow. And for it to flow you must be well equipped and well prepared”. He adds that “the skill of a practicing lawyer is not flamboyance or verbosity but hard work”. “Avoid histrionics and stick to the record; you will find the judge receptive to your pleas”.
WHAT ANCIENT GREEKS AND ROMANS HAVE TO SAY
In a free society, it is persuasion that decides rules and determines behaviour and acts as the governing agent in human physical and mental activities.
In the times of the Ancient Greeks and Romans, public speaking was popularly known as “rhetoric”. As Athens declined, the new Roman Republic had emerged. Some of the major influencers of the Roman Republic were Marcus Tullius Cicero and Marcus Fabius Quintilianus. Marcus Tulius Cicero is considered as one of the greatest Roman orators and was also a lawyer, politician and philosopher. Cicero wrote two pieces i.e. De Inventione and De Oratore. The former gives us insights on the general nature of rhetorical instruction whereas the latter says that an orator must have a firm foundation of general knowledge. Cicero had a belief that the perfect orator should be able to speak wisely and eloquently on any subject with a dignified and restrained delivery. Cicero felt that the perfect orator needs to be profound in many subjects. In order to frame his arguments, an orator must have a wide stretch of knowledge. This applies to the modern lawyer absolutely 100%.
For the Greeks, the art of public speaking was the first and foremost means to persuade a person.
Aristotle wrote that rhetoric is the faculty of discovering in the particular case all the available means of persuasion.
He cited four uses of rhetoric: (1) by its truth and justice maintain their natural superiority; (2) it is suited to popular audiences, since they cannot follow scientific demonstration; (3) it teaches us to see both sides of an issue and to refute unfair arguments; and (4) it is a means of self-defence.
For Aristotle, rhetoric is the process of developing a persuasive argument, and oratory is the process of delivering that argument. He stated that the “authors of ‘Arts of Speaking’ have built up but a small portion of the art of rhetoric; because this art consists of proofs alone—all else is but an accessory. Yet these writers say nothing of enthymemes, the very body and substance of persuasion.”
MAKE THE MOST OUT OF THE TIME THAT YOU GET
The duration for which you are there presenting your arguments, you need to give it your best shot.
It might be the last time that you’re arguing on behalf of your client for the case. You might win the case if there is any luck, even if you do not you can always make a triumphant comeback later. You should not rely on this strategy though, so give it your one hundred percent and make the best out of the time that you get. In the end, it is this job well done that gets you your success.
