The

Technique of Advocacy by John Munkman

Chapter 8: Legal Proof and the Formulation of Arguments

I. Legal proof of facts:
a. The conclusions of science are certain only if the starting point is valid,
but between the starting point and the conclusions there is a deductive
process of reasoning which is logically and inherently compelling. In legal
reasoning, this is not so.
b. Object of legal reasoning: to produce certain belief, based on extrinsic
evidence
c. Scientific reasoning aims at certain knowledge, based on intrinsic
deductions from principles, which are either self-evident or established
by induction.
d. Lord Simons: Contrasts scientific and legal proof . The reason is that in
practical affairs, we are not concerned with universal laws of nature, but
with contingent facts, that is to say facts which could have happened
either way
e. Philosopher Aristotle perceived this centuries ago, and therefore while
his logic was founded on deductive certainty, his Rhetoric was founded
on probability
f. It would be wrong, of course, to give the impression that probabilities
alone constitute the basis of legal proof. There are, in fact, three modes
in which facts can be established
i. Syllogism
ii. Rhetoric
iii. Sign and Example
g. The heart of Aristotles Logic is Syllogism, a conclusive form of reasoning
i. All men are mortal (major premise)
ii. Africans are men (minor premise)
iii. Therefore, Africans are mortal (Conclusion)
h. In Rhetoric, Aristotle says, the Syllogism is replaced by the Enthymeme,
which differs from the Syllogism by having a probability as its major
premise.
i. The term Enthymeme has come to be used (incorrectly) for a Syllogism
with a suppressed major premise.
j. Aristotle also quotes (as arguments distinct from Enthymeme) what he
calls the Sign and the Example.
k. The difference between these three is only one of rhetorical form
(example can be most expressive) and in the text I refer to all three alike
as probabilities
1. Direct evidence - that is to say, the facts are proved by an
eyewitness (including in this any admissible confessions by
an accused person)
2. Logical deduction from direct evidence

3. Probable inferences, based on the facts proved by direct

evidence or directly deduced from those facts
l. It will be clear that the zone of probable inference embraces nearly
everything, which is likely to be disputed. In a case of this sort, the facts
proved by direct evidence will, in the main, be common ground.
m. It is fair to say, therefore, that in any question of disputed fact the
arguments will be based on probability.

Standard Proof in Civil Cases

I.
The standard of proof in civil cases has been much discussed in actions
for negligence where there is no direct proof of negligent acts or
omissions The burden of proof, is, of course, on the plaintiff.
II.
It has been said that it is no enough to offer a "pure conjecture," there
must be a "reasonable inference," that is to say something more weighty
than a mere possibility.
III.
Lord Macmillan: The dividing line between conjecture and inference is
often a very difficult one to draw. A conjecture may be plausible, but it is
of no legal value, for its essence is that it is a mere guess. An inference in
the legal sense on the other hand, is a deduction from the evidence, and
if it is a reasonable deduction it may have the validity of legal proof... the
cogency of a legal inference may vary between practical certainty and
reasonable probability.
IV.
If we turn now to the usual type of case where there is direct evidence
and probable inference (or one or other of them) on both sides, the
question becomes one of the WEIGHT of evidence, not of sufficiency. It is
the duty of the court or jury to decide the issues according to the weight
of the evidence, and an appeal lies if it fails to do so.
V.
Lord Mansfield: As mathematical and absolute certainty is seldom to be
attained in human affairs, reason and public utility require that judges
and all mankind in forming their opinion of the truth of facts should be
regulated by the superior number of probabilities on the one side or the
other.
VI.
That is to say, a civil case is decided according to the balance of the
probabilities, not indeed by counting the number of arguments on each
side, but by assessing which version is more likely... regard to the whole
of the facts and the suggested inferences arising from them. The task of
the advocate, in formulating his argument, is to bear a superior weight of
probability

Standard of proof in criminal cases

I.
The standard of proof in a criminal case is necessarily much higher the
guilt of the prisoner has to be proved beyond all reasonable doubt. The

point may be expressed in this way: a mere balance of probabilities is

enough in a civil action, but in a criminal case, the probabilities must
converge to establish the guilt of the prisoner with complete moral
certainty.
II.
Lord Wright: If every matter relied on as circumstantial is equally or
substantially consistent both with the guilt or innocence of the prisoner,
the multiplication of these instances may not take you any further in
coming to a conclusion of guilt.
III.
The addition of probabilities is not enough in a criminal case: it is not
enough that there should be a series of parallel lines in a given direction;
they must converge to a fixed point. It follows from these remarks that
the defending advocate has a choice of tactics: he may attempt to
establish a great weight of probability, founded on the facts, in favor of
the prisoner's innocence, or he may content himself with drawing a vivid
picture of a reasonable possibility consistent with innocence. Sometimes
the two methods may be combined.

II. ARGUMENTS ON THE FACTS

A. The arguments are the heart of the speeches, and therefore must be
formulated right at the start. The material for the arguments is draw from
the advocate's knowledge of mankind and affairs, and its selection is a
matter for the exercise of practical judgment.
B. As an aid to the formulation of arguments, it may be useful to reflect on the
established facts from certain general points of view. For instance, useful
starting points can be obtained from consideration of the movies and
drawbacks of an action, from opportunity and method, from causes and
effects, from antecedent and subsequent conduct or events, and from the
collateral circumstances which distinguish a particular act or happening. In
nearly every legal argument, the facts are approached from one or another
of these angles.
C. It is the duty of an advocate, however, to be selective: the main points
should stand our clearly, the subsidiary arguments should remain in the
background, without being over stressed, weak arguments should be
rejected altogether.
D. Dr. Crippen case: Crippen poisoned his wife in order to be free to marry Miss
Le Neve, and buried her remains in his celllar. When inquiries were made
about the whereabouts of his missing wife, he took to flight with Miss Le
Neve, disguised as a boy. The remains were discovered. Crippen ws arrested
on board ship. Crippen denied that the remains were those of his wife and
said he had no knowledge of their presence. It should be noted that he had
circulated stories that his wife had gone to America and died there, but at
the time of the trial he said that he believed she had left him for another
man. The jury had to ask: What became of Mrs. Crippen? Were the remains

hers? If so, what was the explanation of how they got there? (Implied
inference: there is no explanation consistent with Crippen's innocence)
III. ARGUMENTS ON THE LAW
A. Arguments on questions of law are very different from arguments on the
facts. No questions of probability arise here, for law is a science, that is to
say a body of general principles, though it is not an exact science like
mathematics
B. Genesis of principles of law:
1. the first stage is that a judge decides a case. He decides what he
believes to be objective standards of justice.
2. From a series of such cases general principles emerge. This is the
second stage.
3. In the third stage ample sources are available. The duty of the judge is
then to decide the case according to settled principles.

C. According to this interpretation, law is an inductive science, building up
flexible principles of objective justice on the basis of stubborn fact.

The enunciation of principles
I. It is a very bad fallacy in legal argument to rely on a case which is said to
be "on all fours" with that which is being decided. The law reports are full
of cases which are on all fours with one another, but were decided in the
opposite way, because their resemblance was apparent only and not real.
II. An advocate who is presenting an argument of law hopes that his
submissions will form the foundation of the judgment of the court. Therefore
the arguments should be sound and not specious, and formulate on much
the same lines as the judge would formulate them in his judgment.
III. Stages
1. Formulate the general propositions of law which the court is invited to
accept.
2. Offer any array of cases in support of these propositions. If cases have
to be distinguished, they should be distinguished on principle.

IV. Failing any principle which governs the case, the best line is the argument from
analogy, a fertile source of arguments, which is in fact the main builder of
our common law: for the whole of the law of tort and contract developed in
the Middle Ages from the prototype of Trespass, party on the initiate of the
courts and party under the influence of the statute in Consimili Casu.

Questions of degree or of discretion
I. Often, problem is not so much to determine the correct principles of law,
as to apply them to the facts of the case: and this may involve
questions of degree, such as whether certain proved omissions were
"negligent," or whether a certain machine was "dangerous. Such a

problem is individual to the particular case, it is really a question of

interpreting the facts in the light of known standards of law. The
judge has to decide according to his practical judgment, and the
proper course in argument is to suggest the sort of considerations, on
the facts of the case, which will guide him to a sound conclusion.

The construction of statutes and documents
I. By convention, the construction of a statue or a document is a
question of law for the court, though in reality it is a question
of fact.
II. The judge decides according to his own particular judgment,
according to the various indications in the document:
probabilities come into play, as in no other arguments of law.
III. The groundwork in such a case is to outline the scheme and
background of the statute or document. The rest of the argument will
be taken up with drawing attention to the sort of considerations in
the document on which the judge may act. and also to drawing out
the various probabilities which can be raised in favor of the
construction contended for.
To decide upon proven probabilities is not to guess but to adjudicate.