Structuring legal arguments

A classical rhetorical argument, like a trial or skeleton argument, usually follows a clear structure which includes:

1. An introduction (exordium)
2. Statements of fact (narration)
3. Legal arguments - these will include legal arguments favourable to your case as well as legal authorities that undermine your case theory.
4. Evidence  that is intended to confirm your case theory (this usually refers to examination in chief and re-examination) (confirmatio)
5. Evidence that is intended to refute the other side's case theory. Cross examination would normally fall into this category (refutio)
6. Closing speech or conclusion

Whilst each legal argument put forward in a case is individual to that case, there are some general principles that are common to many of them. In this section, we will be examining some general principles that have historically been applied to legal arguments. As we've identified above, before witness evidence is presented, the parties will usually present their legal evidence first, such as citing legal authorities, statute, international law, EU law, human rights law, plus other authoritative sources. The appeal to logic and precedent is emphasised here.

Aristotle suggested that “you should first present your own argument, and then meet the opposing argument by direct refutation or by pulling them to pieces in advance.”1

Quintilian suggests “the first place should be given to some strong argument, but the strongest argument should be reserved to the end, while the weaker arguments should be placed in the middle, since the judge has to be moved at the beginning and forcibly impelled to a decision at the end.”2

The Rhetorica ad Herennium suggests “that arguments of medium force, and also those are neither useless to the discourse nor essential to the proof, which are weak if presented separately and individually, but become strong and plausible when conjoined with others, should be placed in the middle”3

Like the classical legal rhetoricians, most modern authorities suggest that advocates begin with strong arguments, group weak arguments together so they gain strength from being grouped and juxtaposed together, and directly rebut adverse arguments rather than ignoring them altogether.4