Writer’s Corner: Making Policy Arguments
Most law school courses spend a substantial amount of time discussing the policy issues inherent in the course subject matter. These broad, philosophical discussions, in turn, often give rise to interesting discussions (at least to us) among law students at a favorite watering hole, (and may be used to dazzle non-law school friends and woo potential mates). Once lawyers begin practicing, however, these grand intellectual ideas and concepts are often shoved aside as the lawyer focuses on established rules and cases and strives to convey the factual details. This need not, and should not, be the case, as policy considerations should play an important role in any argument presented to a court.
While it is difficult to “categorize” types of policy arguments, we will do so for the sake of structure. The use of policy arguments can be broadly divided into two basic types of cases: (1) cases where you are arguing how your case fits within well-established legal rules and principles; and (2) cases where you are arguing for or against the adoption of a new cause of action or a significant alteration or expansion of existing law. There is not an easy line to draw between the two types of cases and the reasoning process and development of policy arguments is similar in both situations. Of course, every appellate decision alters, in some small way, the existing common law. In future columns we will look at some guidelines and tips for creating effective policy arguments for the two case types noted above. In this column, we will review some of the basic principles that govern the structure, use, and style of all policy arguments.
Not An Equity Argument
A good working definition of a policy argument is an argument that addresses the implications of a possible decision in terms of society as a whole, a significant segment of society, or a specific industry. On the other hand, equity arguments focus on what is fair to a specific litigant in the case. While equity arguments may occasionally have their place, broad policy arguments are generally more effective because policy arguments allow a judge or a panel of judges to make a decision based upon the broader good rather than simply a preference for one party’s predicament. The difficulty lies with our natural tendency to want to always be advancing our client’s position. A good policy argument requires the attorney to “step back” from a client-specific argument and look at the larger ramifications of the decision.
For example, suppose you are defending an employee against a claim by a former employer that she violated a noncompete agreement. After working for the company for six months, the employee signed the agreement in exchange for a bonus of only a couple of hundred dollars and under an implicit threat that she would be fired if she did not sign. Your argument is that she did not receive adequate consideration, as is required when a noncompete is signed after commencement of employment. An equity argument might read as follows:
A policy argument would likely be more effective and yet still convey the same basic message:
The policy argument places the issue in the broader societal picture and is likely to be more effective than a basic plea for fairness.
Use in Trial Courts
While trial courts obviously have no binding authority, you should not eschew policy arguments in that forum. A trial court judge will still want to look at the broad societal implications of her decision and will want to make a decision that is consistent with the underlying purpose of the existing law, the two basic purposes for making policy arguments. Making the trial court judge aware of the policy implications of her decision is particularly important if you are addressing an issue that will have a standard of review at the appellate court level of anything other than de novo. If the trial court’s decision is going to be given any deference at all by the appellate courts, the trial judge must be made aware of the possible policy implications of his or her decision.1
Placement and Support of the Arguments
Too often attorneys treat policy arguments as somehow different from their case law and statutory analysis arguments. The policy arguments are often tacked on at the end of the arguments section and include the sources of support right within the arguments themselves. Instead, your policy arguments should be woven in with your case law and rule-based arguments. For example:
It is also beneficial to include the support for your policy arguments in your rule of law, instead of saving it to immediately precede your policy arguments. As will be discussed more fully in subsequent columns, support for your policy argument may come from a variety of sources, including statutes, case law, and treatises. Providing this support in your rule of law allows these principles to filter down through your entire analysis. Indeed, you may even find that the policy rules become the theme for your entire argument.
Structure and Style
Because policy arguments are at least somewhat philosophical in nature, an attorney can easily find himself writing freestyle and using a policy argument section to show his intellect, or sometimes even to espouse his views on tangential matters. However, a disciplined approach is needed in this as in any other legal argument. You should work to make your policy arguments as concise as possible and as well-supported by legal authority as possible. Avoid repetition; no matter how brilliant your insight, the judge need only read it once. Finally, while you certainly want to be a strong advocate for your client, remember to be reasonable. It is unlikely that society would suddenly collapse if your opponent were to prevail, nor is it likely that the world would be rid of evil if your client were to triumph. A reasonable, focused prediction of the effect of the decision will be most persuasive.
Following some of these basic guidelines will help create argument sections that not only analyze cases and statutes, but also integrate the broader public policy implications of the decision. And who knows, you may still be able to dazzle your nonlawyer friends with your philosophical intellect.
KENNETH R. SWIFT is an attorney and serves as an instructor in legal research and writing at Hamline University School of Law.