legal reasoning: introduction

A Lawyer's Problem

A house similar to the one which was bought and sold

The Case

Lawyers solve problems. But how do lawyers solve problems? In part by using their native ingenuity, their social skills, their common sense -- and in part by using the tools of legal reasoning. What kinds of tools are these? The purpose of this Introductory Problem is to look at the kinds of tools lawyers use. In the rest of these materials, you will, we hope, learn how to use all of them.

The trial is almost over. There were only three witnesses: the plaintiff, who bought the house; the defendant, who sold the house; and the contractor, who stopped the basement from flooding. Their testimony did not diverge in any substantial respect, and you expect that the judge(1) will find all three witnesses to be credible. It is time to make your argument that your client, the defendant, does not owe the plaintiff the $20,000 he claims, nor indeed anything.

Your notes as to the gist of what the witnesses said, are as follows:

The Plaintiff Testified

Plaintiff on Cross-Examination

The Contractor (Plaintiff's Witness) Testified

Contractor on Cross-Examination

Defendant Testified

Defendant on Cross-Examination

Questions to Consider

This, you realize, is not going to be an easy argument on either side, even though the raw facts are clear. The moral intuitions of some people in the society would lead them to favor the plaintiff; of others, the defendant. Indeed, you, yourself, can see that there are two legitimate sides here. But the parties were unable to come to a settlement, and now you have to give voice to your client's side, leaving it to the judge to judge. There are limits to what you will do, of course; at the same time, unless you do something to put the argument in order, your client's position will remain mute.
  1. You are representing the defendant. As you start thinking about what has happened so far, you realize that the "story" of what happened between these parties can be told in different ways - and, you suspect, the way in which the judge understands it will have a lot to do with how she will rule. Considering the plaintiff, you realize that a central part of this situation is that he did not do much to protect himself. His attorney, you suspect, will try to portray him as an honest, trusting soul, deserving of the law's protection.
  2. Looking for the legal boundaries, you have found that in many situations, including some having to do with the sale of used houses, the decisions in your jurisdiction no longer, as they once did, make a seller's liability for representations turn on whether the seller intended to defraud the buyer.

  3. The seller is responsible (in the words of a recent case) for "affirmative misstatements of fact, even if innocently made." You believe that the plaintiff's attorney will try to make something of the seller's having told the buyer "it's a fine house." You want, of course, to argue that nothing should be made of it.
  4. You also expect the plaintiff's attorney to argue that the defendant, even if she made no "misstatement of fact," should be held to warrant that the house is free from defects, or at least be held to have to disclose before the sale any defects of which she was aware. You have found no cases decided by the Supreme Court of your jurisdiction which resolve these claims as regards the sale of an old house. The three arguably relevant, recent cases you have found are:
  5. Inevitably, in responding to the arguments you expect the other side to make, you will have to be dealing with the case both in its particularity - what did these parties say to each other when they struck a deal - and in its generality - what duties do typical buyers and sellers of property owe to each other. But the size of the canvas on which you will paint is also, to some extent, within your control.
  6. Finally, it is true you are arguing to a trial judge, who is bound to follow precedent; but her view of what the law ought to be may well influence her view of what the law is, if it is at all doubtful.
Three things are apparent from this list. First, lawyers do not simply make arguments, they build arguments: fashioning a legal argument is a remarkably creative task. Second, several different mental skills are involved in this creative process. Third, the way in which each aspect of the argument is constructed has implications for the other aspects.We have tried to tease these various skills apart and to present materials that will help you master them. When you are through, you should be both more adept at creating legal arguments and more proficient at understanding the structure of arguments others have built.

Identifying the Issues

The five Lectures following this Introductory Problem are designed to acquaint you with the dimensions of legal reasoning and argument identified by the five numbered paragraphs you have just read.
  Why not try formulating a tentative analysis of the Introductory Problem: A Lawyer's Problem right now? Then, after you work with each of these lectures, you can come back to this Introductory Problem to test your newly developed abilities.