One of the most important skillsets to have as a lawyer or a law student are oratory skills. Some may call it “the gift of the gab”. Literally everyone has that friend that is able to defuse rather awkward situations and enchants us whenever he or she breaks into a soulful monologue- that’s the gift I am talking about. The masterful command of the language and skilful combination of words and phrases beaten to suit the intention of the speaker all serve to allure and sustain the attention of the listeners.
As a lawyer or a law student, you probably already know that 85% percent of your work involves persuading and convincing either a set of jurists or some other relatively higher body of the correctness of your argument. Your profession hangs on your ability to construct arguments in such a way that it is appealing not only to your ears, but has the ability of convincing everyone that hears it of the validity of your argument- as opposed to the person you are arguing against whom is probably full of shit. Your words not mine. Your success either as a lawyer or a law student is determined by your literary proficiency and rhetoric mastery.
Hopefully I have convinced you of the grave danger you could fall into if you fail to be as eloquent as possible, both in speech and writing, but because I am very gracious, I will outline them below;
- There is a high possibility you would make them very confused;
- You are definitely going to lose the attention of your listener;
- Your listener does not get the point you are trying to make and is not likely to support you despite the correctness of your otherwise valid argument;
- If you are still a student, your lecturers aren’t going to take kindly to a student of their that blubbers and stutters when called upon to argue a point.
Those are just a few points and I am positive you have already thought up a few more.
It is common knowledge to everyone involved in the legal field that there are two main doors through which a point can be argued- case laws and statutes. Anyone interested in applying any of these methods needs to do so logically, and in a manner that is as appealing and convincing as possible. The hack or backdrop to any argument coming from a lawyer is that it has to eliminate even a sliver of doubt from the mind of the listener.
It is not adequate that the lawyer or student knows of the existence of a related authority or is thoroughly convinced of the logicality of his argument, there is need to present these ideas and convictions in a way that leaves nothing to the imagination of the individuals. Imagine a to-do-list where the owner crosses off all the chores that have to be done. Yeah, something like that.
It is imperative to note that there are two major authorities cited to favour an argument. This is common knowledge to everyone in the field, but since I decided that every post or concept on this blog has to be treated as a fresh and newly discovered area, justice has to be done to it. back to what I was saying. Whenever a lawyer or a student makes an argument for or against a notion, it is expected that that argument be laden with these authorities. These authorities are of such a significance that an absence would amount to what the Nigerians have termed “talking in the rubbish”. Everyone with standing would look at a beautifully crafted essay devoid of these authorities and dump them where they belong- either in a trash can or beneath a pile of documents; this, of course, is dependent on how gracious the listener is to non-legalistic parlance adopted in the court.
These two authorities are; Statutes which comprise the laws passed by the legislative arm of government under which a territory is to be governed; and Precedents which are past decisions on related cases. The first authority is pretty straightforward. These are mainly bills promulgated by the lawmakers which have been legally passed into law. These are cited to lend authoritative legal credence to an argument. The second which are Precedents, although largely straightforward, comes with a few snags.
For one, it is important to establish that Nigeria operates a common law system. I believe I talked about this in an earlier post but I will give a brief summary of it here. The common law system was imported to Nigeria as a result of her colonial relationship with Britain. Common law system developed in England in the l4th century as a unified system of dispute resolution. There was clamour for the need of uniformity in the process, stability and above all others trust in the system. The subject of the Common law is a broad one and requires a whole new post, but the gist is this; the system had as its basis or backdrop the past judgements of judges. In other words, when a case came before a judge, he is bound to sift out the differences, and I none is found, to apply the principle applied in the previous case. The proviso is that the cases must not be found to be dissimilar else the judgement would be said to have been reached “per incuriam” – which is fancy name for “carelessness”. Another way around this obligation is that a court is only bound by the decisions of a court of superior authority. The precedents set forward by courts of coordinate jurisdiction and lower courts have only a persuasive power, if any at all.
I should also mention that there is a third form of authority used from time and is not binding. Like its brothers, the precedents from lower courts, it has only a persuasive capacity. This third authorities are the statements or theories put forward by renowned legal jurists. In some cases, although in present times a rarity, these sayings or definitions put forward by legal scholars eventually form a part of the law, by venture of their being used over a long period of time. Now that we have talked somewhat extensively on the existence of these authorities often employed by people in the field, it is necessary to move on to the main gist of this post. In the first post, I talked about the importance of oratory skills as a lawyer or law student. I stressed on the need to fully develop and work on this skillset in order not to end up as just another “unfortunate and inapt blabber”. Now I want to talk about the various forms of logic applied to make an argument or statement.
Syllogism, commonly referred to as deductive reasoning, is the movement from a general or major premise to a conclusion that is regarded as being logical. This is no doubt an oversimplification of the terms, but that is what I am here to do- oversimplify till I can oversimplify no more. Bottom-line is that when people apply this sort of reasoning, they move from some generally accepted fact to the statement being put forward and make a conclusion that corresponds with the preceding statements. An example is this; All plants need water, A pumpkin is a plant, therefore it needs water. See? It then goes without saying that loopholes can be poked in this reasoning. For one, the assumption that a general premise carries every likely scenario is a pretty bold one. Take the example given above. If the plant in question had been a cactus, the argument would not hold true, as it has been proven countless times that cactuses can indeed survive without water. Another characteristic feature of this logic is the discrepancy between “truth” and “validity”. In this instance, what is regarded as valid is whatever fits the premise that has already been established. It does not matter if the conclusion is untrue or regarded as unfair. As far as it was reached “logically”, it is regarded as correct. The major hindrance to this logical method is the possibility that a wrong premise might be presented, and when the conclusion is reached, it would no doubt be an erroneous one. This method is applied when a lawyer or student intends to argue a point and chooses to employ a statute.
You probably already guessed it and you are right by the way! This is the opposite of the logical approach aforementioned. Rather hat moving from an already existing or established premise, the argument has, as I would call it, shaky and very intricate roots. Also, this method is applied when precedential rules are being applied. It goes without saying that single case cannot be regarded as having set or established a principle, rather there is need to consult that case along with other related cases. Tedious and rather boring work I imagine. All the related cases have to be analysed and read thoroughly in order to find the underlying principle that makes up the judgement. If it is then established that the cases in question have striking similarities and were ruled by the same principle, the major premise comes in.
This reasoning is one employed by lawyers and law students all too often. This form of reasoning comes into play when a judge or lawyer has to prove that a precedent submitted to the court by the counsel is not similar enough to the case at hand for it to be valid. This approach does not include a statement of premises or derivation of conclusions, rather it has to do with an astute skill for differentiation. In other words, this form of reasoning entails whomever presents a precedent having an obligation to find the similarities, and the person to whom it is presented having the duty of sifting out the differences.