It seems redundant to say that good lawyers require and apply the tools of logic. After all, lawyering is about argument, and argument is about the design and presentation of a compelling thesis, one that can’t be refuted. Yet, surprisingly, the formal modes of logical thought are not a part of traditional law school curricula; and too many lawyers fail to think logically.
This concern has been voiced over the years. In a 2007 law review article Federal Judge Ruggero Aldisert wrote that “First, all prospective lawyers should make themselves intimately familiar with the fundamentals of deductive reasoning.” LOGIC FOR LAW STUDENTS: HOW TO THINK LIKE A LAWYER, 69 U.PITT.L.REV. 11 (2007). Aldisert’s article goes on to illustrate how this is done – by syllogistic reasoning and by proceeding from major premise to minor premise to application of the law to a case’s specific facts:
Here are two of Aldisert’s illustrations, along with an elaboration:
A law is unconstitutional if it impacts the zone of privacy created by the Bill of Rights.
The law banning contraceptives impacts the zone of privacy created by the Bill of Rights.
Therefore, the law banning contraceptives is unconstitutional.
To shape a legal issue in the form of a syllogism, begin by stating the general rule of law or widely-known legal rule that governs your case as your major premise. Then, in your next statement, the minor premise, describe the key facts of the legal problem at hand. Finally, draw your conclusion by examining how the major premise about the law applies to the minor premise about the facts. Like this:
Major Premise: Cruel and unusual punishment by a state violates the Eighth Amendment.
Minor Premise: Executing a minor is cruel and unusual punishment by a state.
Conclusion: Executing a minor is forbidden by the Eighth Amendment.
69 U. Pitt. L. Rev. at 5-6.
THE FORCE OF LOGIC by Professor Stephen Rice is a book-length treatment of the lessons and application of principles of logic for “legal argument,” a term read broadly to cover everything from an opening statement at trial to the design of interrogatories and deposition questions, appellate briefing and argument, and even the drafting of a civil complaint. A weekend spent reading it was elucidating – having been ‘at the Bar’ since September, 1978, I have made all-too-many arguments in all-to-many forms and contexts, but never formally studied inductive, deductive and analogic reasoning. I may have deployed those tools, and attacked my opponents’ failures when they tried the same, but without a rigorous structure. Rice’s emphasis on recognizing and deconstructing logical fallacies is critical for any thoughtful lawyer.
The book is clearly a labor of love, and is reflective of Rice’s keen grasp of logic and of cases where courts have used the tools of logic to embrace or debunk the arguments of the litigants. It has the added benefit of a summary at the end of each chapter.
Yet what gives me pause in commending this book are two concerns. First is its length. As an academic I have the luxury (and possibly the patience) to take a weekend and immerse myself in chapter and verse about “disjunctive syllogisms,” the fallacies of “negative premises” and “illicit process[es],” but I suspect most practicing lawyers, especially those who focus on trial litigation, do not.
The second is the omission of technique for refuting bad logic at trial. Rice writes that “[t]he rules of logic provide language tools for describing what is wrong with fallacious arguments, and why fallacious arguments are wrong. Depending on the circumstances, it might be appropriate to point out the fallacious nature of the argument, describing the logical fallacy…” But Professor Rice never describes when those circumstances might arise or what language might be efficacious, particularly in front of a jury as opposed to in a legal brief or before a panel of highly-educated jurists.
THE FORCE OF LOGIC is an impressive work and might be best as training material for lawyers with appellate or motions practice or as a text for a law school or LL.M. class. And even skimming or selective reading will improve a litigator’s preparation for and presentation at trial. But this is not a book one is likely to keep handy or turn to repeatedly, unlike so many NITA texts.