Monday, May 1, 2017

Sharpen Your Legal Analytical Skills

Originally published by Daniel Correa.

           Lawyers are trained to apply a set of reasoning tools to legal problems. These tools include, but are not limited to, analogy and disanalogy, deductive syllogisms, interpretive principles (cannons of construction), such as ordinary meaning controls, specifically enumerated items limit general words to objects similar to the specific words (ejusdem generis), and ascribe to ambiguous words a meaning in accord with the rest of the document (noscitur a sociis).
            Legal theorists distinguish two legal reasoning tasks. First, one must ascribe meaning to statutes, regulations and cases. This task helps legal practitioners know or understand the official rules. Second, one must identify a class of facts which fall within the rule’s reach. This task helps legal practitioners understand or identify the scope of the official rules. Lawyers, legal scholars, and judges generally employ their legal reasoning toolkit to perform both tasks.
            Lawyers employ other analytical tools to assess legal problems. For example, grammar and logic rules play a role, as do “practical-reason” tools. By “practical-reason,” I mean action-oriented rationality, as opposed to what philosophers would call “pure reason,” which concerns validity-oriented rationality, that is, reasons for accepting a proposition as true or false, valid or invalid.
            Lawyers must also keep abreast of changes in statutes, regulations, and case law to adequately represent their clients. This is the easy part, if only because each state bar requires a minimum number of continuing legal education hours to maintain one’s license. But it is equally important that legal practitioners keep their analytical skills sharp, which means, in part, sharpening one’s practical-reason tools. In his recent book, “Intuition Pumps and Other Tools for Thinking,” Daniel Dennett explicates a number of practical-reason tools that may assist lawyers.
            Occam’s Cuts
            Consider Occam’s Razor—a tool or rule of thumb which posits that the simpler explanation is usually preferred over a more complicated one. Occam’s Razor cautions that one should be suspicious of complicated answers. But, as Dennett points out, one must remain alert to over-simplistic answers, whose damning evidence lies in what is concealed or omitted.
            This leads Dennett to another tool, a play on Occam’s Razor, which he labels “Occam’s Broom”: “the process in which inconvenient facts are whisked under the rug by intellectually dishonest champions of one theory or another.”  Daniel C. Dennett, Intuition Pumps and Other Tools for Thinking 38-41(W. W. Norton & Company 0213). Dennett calls this an anti-thinking tool.  He advises one to focus closely on what is unstated.

            Lawyers must master identifying what is unstated. But that is only the first step. Once a lawyer identifies omitted facts or omitted elements or principles to the underlying law at issue, the next step is to identify whether the omission is doing any substantive work—Does its inclusion significantly increase the chances that the opposite of what the movant seeks will obtain? If so, exploit the omission to your client’s gain. If not, do not rush into including what was omitted by the opposing party. Remember Occam’s Razor—keep your side uncluttered and simple.
              Beware the Deepity
            A personal favorite from Dennett’s thinking tool repertoire is the “deepity.”  “A deepity is a proposition that seems both important and true—and profound—but that achieves this effect by being ambiguous. On one reading it is manifestly false, but it would be earth-shaking if it were true; on the other reading it is true but trivial.” Id. at 56-57. Deepities abound in legal petitions, motions, briefs, and even in case law.
            Consider this statement by Judge Richard Posner from a famous case: “Law lags science; it does not lead it.” Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996). On one reading, the statement is false. Science, for one thing does not predate “law,” or at least not obviously so. And, depending on what one considers “leading,” law leads science insofar as scientific endeavors are limited by law in many ways. Historically, in fact, under the auspices of law and authority, scientific endeavors have had to yield to what the state or governing authority considered appropriate forms of or matters for exploration, and even the appropriateness of scientific conclusions. And, both federal and state laws often set limits on what can be tested (think of endangered species, embryos, and humans) and how it can be tested. Federal and state funds often underwrite scientific studies, studies which are specifically selected for funding by these governmental bodies; to point out the obvious, this selection process puts government in the position of deciding which scientific endeavors advance and which do not, though the losers in this selection process may still seek alternative funding.
            Yet on another reading, whether law lags science or vice-versa is a trivial matter considering the issue before the court. As examples, consider two Texas Supreme Court cases which quote Judge Posner. Both cases deal with the evidentiary burden needed to demonstrate causation in chemical and toxic tort cases and both conclude, in part, that a plaintiff can raise a jury question as to causation by introducing scientifically reliable evidence—at least two epidemiological studies of a class of persons similar to the plaintiff, under a set of conditions similar to plaintiff, which show, with a 95% confidence interval, that the dose of exposure from a defendant’s product doubled the risk of injury to the plaintiff.  Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332, 340 (Tex. 2014); Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 728 (Tex. 1997). Neither case was deciding whether law leads science or vice-versa. (Note, though, that the court in Bostic and Havneraccepted, if only implicitly, that the court, not the scientific community, at least not directly, has the final say on what constitutes admissible scientific evidence).
            In neither of those Texas cases, nor in Rosen, did the phrase—“Law lags science; it does not lead it.”—do any substantive work other than, perhaps, its utilization as an aphorism. But this aphorism alone has made its way into at least sixty-one (61) cases across the United States. This latter fact reveals the problem with deepities in motions, briefs, and cases: though without substance, their simplicity and seeming aptness offer persuasive power which, if unchecked, may override critical impulses.
            Deepities, undoubtedly, may be far more subtle than the above example. Sharpening ones practical-reason tools, and, of course, legal reasoning tools, ensures clients the best defense and prosecution. If you run across a deepity, blow it up! Point out what makes it false, or conversely, what makes it trivial.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

from Texas Bar Today
via Abogado Aly Website

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