Posted on March 6, 2014
You’ve probably seen at least one of those funny ads from DirecTV urging you to get rid of your cable television service. One of them goes something like this:
When the cable company keeps you on hold, you feel trapped.
When you feel trapped, you need to feel free.
When you need to feel free, you try hang-gliding.
When you try hang-gliding, you crash into things.
When you crash into things, the grid goes down.
When the grid goes down, crime goes up.
When crime goes up, your dad gets punched for a can of soup.
So, get rid of cable, change to DirecTV.
The comedic element of the ads obscures the fact that they illustrate, albeit loosely, an effective method of argument or persuasion — deductive reasoning. In its truest sense, deductive reasoning is based upon drawing a specific conclusion from general statements. A very simple example is: Dancers are thin. Jenny is a dancer. Therefore, Jenny is thin. While the DirecTV ad doesn’t take the time to reason out each separate point of its argument as it rapidly advances, the viewer can still follow as the argument is carried six or seven steps to the point of absurdity. This, of course, is what makes the ads memorable.
However, similar reasoning is effective when taken only a few steps. It’s used with great effect by political commentators, who might argue that “President Obama wants to create new regulations. New government regulations limit on your freedom. Thus, President Obama wants to take away your freedom.” Here, taken only a few steps, the reasoning, while simplistic, is more believable. And that’s how it can be used in an appellate brief.
I have found to use such reasoning in its use in legal argument, you must first build off of a strong point – an accepted fact or proven contention. In the political example above, it’s ”President Obama wants to create new regulations.” This is accepted as true by the reader because either it’s either viewed as consistent with the President’s ideology or the proposed regulations have been widely reported in the news. The second step is then key. The assertion, such as “[n]ew government regulations limit your freedom,” must be presented in an assertive manner as a blanket truth when in fact there are many instances in which it is not. For example, some regulations actually may serve to increase freedoms for some by limiting monopolies or forcing other actions that opens opportunities for choice. However, if the second assertion is also accepted by the reader as a truth, then the third statement, the conclusion, is also likely accepted by the reader: “President Obama wants to take away your freedom.”
In the context of a legal argument, the following is an example of such reasoning I used in a appellant’s brief where I asked the court to reverse an order compelling a putative class representative’s claims to arbitration based upon a public policy argument.
Strong Assertion: An unconscionable contract is one which contains terms that a reasonable person would not freely enter into nor would insist that another person agree to.
Second Assertion: A reasonable person would not seek to bring a claim to recover $250 in damages if it cost them $500 to file the claim.
Conclusion: A contract containing a provision requiring all claims be decided in an arbitration hearing under the AAA’s Commercial Rules (and its filing fees) is unconscionable and void.
While there are a few steps missing in the argument, the remainder can be found in the Alabama Supreme Court’s opinion in Leonard v. Terminix Int’l Co., L.P., 854 So.2d 529 (Ala. 2002), where my briefs convinced the Court (by a narrow 5-4 margin) to strike the arbitration provision found in a termite services contract and allow a consumer class action case to move forward. Much like the argument above, the majority opinion concluded:
This arbitration agreement is unconscionable because it is a contract of adhesion that restricts the Leonards to a forum where the expense of pursuing their claim far exceeds the amount in controversy. The arbitration agreement achieves this result by foreclosing the Leonards from an attempt to seek practical redress through a class action and restricting them to a disproportionately expense individual arbitration.
854 So.2d at 839.
So, when thinking about the arguments you want to make in a brief, see if you can construct them in a similar style. It may help you turn a longshot into a winning brief.
If you feel you may need help with writing an appellate brief, or just have a question about appellate practice, feel free to contact me through the web site for my freelance legal writing service, Appeals and Briefs by Michael Skotnicki, Esq., found either through clicking the logo on this page or via this link, www.appealsandbriefs.com.