A Method for Teaching Common Law Argument
by
Curtis Nyquist

In my Contracts course I emphasize the skill of common law (vs. statutory) argument in both my teaching and testing. I teach this skill by asking students to comb through cases in search of segments based on argument. Courts often rely on argument (lightly rewritten) in drafting opinions, although you can never be sure (unless the case reads "The plaintiff/defendant argued . . .") and not all opinions display argument. Once students have located an argument, I ask them to identify the argument type, critique and improve it, and generate a counter argument. I combine this method with other, more traditional methods of teaching argument.

I divide common law argument into three types: fact-based, case-based, and policy-based. Although the best legal argument is seamless, in a first-year course there are good reasons to separate types.

In fact-based argument, the parties use the facts of their dispute to argue that a rule does, or does not, apply. For example, the Wisconsin Supreme Court has adopted section 90 (promissory estoppel) of the Restatement (Second) of Contracts. In a Wisconsin promissory estoppel case, then, one of the parties will argue that the facts support recovery under section 90 and the opposing side will argue that the facts do not support recovery (e.g., there was no reason to expect that the promise would induce action by the promisee because of such and such).

In case-based argument, the parties analogize or distinguish a prior case in light of factual similarities or differences. The apocryphal story of the lawyer faced with a case on all fours against him, who argues "Your honor, this case is completely distinguishable; why, even the names of the parties are different," makes the point that factual similarities or differences are relevant only in light of some rule.

Policy-based argument focuses on the purposes and policies underlying a rule and argues that the facts are either within, or outside, those purposes and policies. In addition, policy argument tries to convince the court that good consequences for society will flow from a finding in your favor and/or horrible consequences will flow from a decision for your opponent.

I introduce the method in the first meeting of the course, students include argument in their briefs of the cases, and I include it in my Socratic dialogue, even when there is no obvious argument section in a case. Asking the question about each case keeps argument in the forefront of students' minds.

The most important parts of the method are asking students to critique and rewrite arguments and to generate counter arguments. For example, in Hinson v. Jefferson, 215 S.E. 2d 102 (N.C. 1975), the plaintiff bought an empty lot from the defendant but was unable to build a home because the land would not support a septic system. One of the plaintiff's theories was rescission based on mutual mistake. The court distinguished a prior mistake case that had denied rescission:

There are, however, several important distinguishing factors between the Miller case and our case. First, the purchaser in Miller was a developer-speculator; in our case the purchaser is a consumer-widow. Second, the property in Miller was not rendered value-less for its intended use, but only rendered less valuable because it could not be devel-oped as densely as originally anticipated; in our case the property was rendered totally valueless for the intended use.

The student discussing Hinson generally correctly identifies the paragraph as reflecting the plaintiff's case-based argument and also correctly points out that the argument falls far short of what I would expect on examinations.

At this juncture there are three options:

• Ask the particular student to identify the weaknesses in the argument and generate an improved argument;
• Break the class into small discussion groups ("Pick two or three students sitting near you, discuss the argument's weaknesses, and develop an improved argument.") and have groups report back to the entire class; or
• Have the entire class discuss the deficiencies in the argument and then have each student write an improved argument (and exchange with a classmate who writes comments on the improved argument).

The argument in Hinson is weak because, although it points to factual differences between the cases, it fails to connect the differences to the rule (like many students on the midyear exam and -- sadly -- some students on the final). The plaintiff in Miller was a developer-speculator while the plaintiff in Hinson is a consumer-widow. What difference does that make under the rule of mutual mistake?

(Hinson provides a teachable moment due to casebook editing. The full report of the case does offer some discussion of why the differences matter under the rule. When the class has completed the Hinson exercise, I read the court's explanation from the full report, and we then critique that.)

Once the argument in the case has been critiqued and improved, I have students generate a counter argument (e.g., "In Hinson what would the defendant argue in citing Miller as an analogous case?"). The three options (particular student responding/discussion groups/writings) are available here, also. I don't grade the written work, but it gives me feedback on the class's progress, and it provides students an opportunity to practice for my exams (argument counts for approximately 50 percent of the grade in the course).

As the year progresses and students become more skilled in developing arguments, the class can be divided in half and each group given a separate task ("Students on the right side of the room work in discussion groups to critique and improve the defendant's policy argument found on page 593 of the text, and the left side work in discussion groups to generate the plaintiff's policy argument on this issue."). I also work to erase the seams between argument types. Why should a court adopt a broad or narrow reading of a prior case? Because of policy concerns. Why should ambiguity about whether a rule applies be resolved one way or another? Policy. And so on.

In my experience, the virtues of this method (beyond the obvious training in common law argument) are:

• It produces an additional type of critical reading;
• It highlights the importance of skills training in legal education (a point that first-year students continually forget - they are much more comfortable passively gathering information);
• It forces students to argue both sides of an issue;
• It emphasizes the contingency of law by continually reminding students that a court opinion is a choice between conflicting, often evenly balanced arguments;
• It provides opportunity for students to work in groups; and
• It encourages rewriting.

A final point is that the method allows even the weakest students to work toward improving their exam performance by practicing a discrete skill heavily tested on my examinations. Toward the end of each semester I also offer extra sessions on other exam skills (issue identification and framing, answer organization, etc.), but legal argument is integrated into the course from day one.