When you craft tight and convincing paragraphs, you leave your opponent no room to break into the flow of your argument. This requires recognizing the specific roles played by facts and opinions and asking the right follow up questions to uncover weaknesses.
Opinion vs. Argument
We often allow opinion to slip into our writing as though offering incontrovertible facts to the judge: “This is precisely the kind of case appropriate for a Rule 12(b)(5) dismissal.” Says who? The lawyer asking the judge to dismiss the case? True argument weaves facts and logic until the judge says to herself, “This case is ripe for a 12(b)(5) dismissal.”
Never allow an opinion to go unchallenged, or it will signal a weakness in your argument.
Turn Opinion into Argument by Asking “Why?”
As we wrote in Part 8, judges don’t care what we think; they want to know how we got there. We cannot leave opinion in a sentence and expect to convince a judge. For example:
The site restoration demanded by the Tribe would cost the Boomer Family a substantially greater amount of money today than it would have 60 years ago.
No further explanation; just a proclamation by the Family’s lawyer. But we can turn the lawyer’s opinion into argument by asking a question and answering it in the next sentence. The question is: “Why?” Why would the Tribe’s demand for site restoration in 1985 cost any more than it would have in 1925? Cost over time is relative: a loaf of bread in the ‘20s cost a dime; 60 years later, it was ten times that much, just like shovels, labor, bulldozers, and everything else needed for site restoration. If restoring the site would cost the same in 1925 as it would relatively in 1985, where is the inequity? Where is the Family’s laches argument: that by waiting for 60 years, the cost had increased not with the Cost of Living Index, but exponentially? The Family never tells the judge that something happened in 1970 that greatly skewed this picture: Congress created the Environmental Protection Agency and no longer was the cost in time and materials, but in the permitting process. With the Tribe not suing until 60 years later, the cost had grown not ten times greater, but a hundred times greater.
Opinion or Fact?
There are only two kinds of sentences in an argument: opinion or fact. Each requires we ask a question and answer it in the next sentence:
- “Why?” – After an opinion, ask, “Why?” Answer in the next sentence.
- “So what?” – After a fact, ask, “So what?” Answer in the next sentence.
If we can’t answer “Why?” or “So what?”—or we don’t like the answer—that tells us our argument has weaknesses or gaps.
We build an argument by opening with a broad opinion and asking “Why?” or “So what?” after each sentence until we arrive at our punch line: the last sentence of the paragraph. This method satisfies a judge’s demand for logic: this leads to this leads to this.
Example #1: Environmental Case
Here’s a paragraph to illustrate the method in the site restoration case above:
To require the Boomer Family to pay for restoring the site in 1985 is inequitable. [OPINION: Why is it inequitable?] Had the Tribe been diligent in suing 60 years ago when John and Art Boomer built the first dikes by hand to protect their pasture land, the cost of dismantling them would not be nearly as high as it will be in 1985. [OPINION: Why would the cost have been not nearly as high as it will be today?] Even forty years later, the cost would have been far less. [OPINION: Why would the cost have been far less even as recently as the ‘60s?] But after Congress created the Environmental Protection Agency in 1970, the Army Corps of Engineers and the State of Washington required permits to do this work. [FACT: So what if the Corps of Engineers and the state require permits?] Within four years they had added new requirements before an applicant could obtain a permit. [FACT: So what if the defendants needed more permits?] These new requirements included environmental impact statements, public meetings to evaluate proposals, and the additional services of engineers, botanists, biologists, hydrologists, and lawyers. [FACT: So what if the permitting process is complicated and expensive?] From 1971 to 1975, the average cost of obtaining a permit to alter the flow of a stream in Washington rose from $7,000 to $28,000.
The first sentence is purposely broad, and as the paragraph continues down, it builds, getting tighter, supporting the Family’s theory of laches, until the punchline at the end: when the Family reveals that the Tribe’s delay in demanding site restoration has driven up the cost not relatively with the Cost of Living Index, but exponentially with the permitting process. And in the paragraph that would follow, the reasoning and the cost would continue mounting into the ‘80s.
Example #2: Employment Case
Here is another example from an employment case. Note that the opening sentence is a statement of fact because Green did claim this: the claim might not be true, but that he claimed it is true:
Green claims Tempo terminated him only because he initiated an investigation against his supervisor for sexually harassing a colleague. [FACT: So what if he claimed retaliation?] This argument ignores the assault charges against him and his refusal to cooperate in the mandatory investigation that followed. [FACT: So what if he was charged with assault and refused to cooperate?] To refuse to cooperate with a mandatory investigation violates company policy and Green’s duty of loyalty. [FACT: So what if the refusal violates company policy?] It prohibits the company from performing its obligation to investigate, leaving the company no choice but to terminate Green. [OPINION: Why must the company terminate Green?] If the company had left the Green investigation unresolved, yet kept Green at the company, it would have violated its duty to protect the colleague and other employees.
A cogent, convincing argument requires a logical flow in each paragraph, and we guarantee that logical flow by using this simple method to challenge each sentence.
About the Author
Gary Kinder has taught over 1,000 writing programs for the American Bar Association, the Social Security Administration, PG&E, Kraft, Microsoft, and law firms like Jones Day, Sidley, and WilmerHale. His critically-acclaimed Ship of Gold in the Deep Blue Sea hit #7 on the New York Times Bestsellers List.