LawProse Lesson #449: Embrace the clash

LawProse Lesson #449: Embrace the clash

It’s perhaps easy to forget that persuasion depends on a choice between competing positions—and therefore a conflict. As Aristotle taught us, there’s no reason to persuade if there’s no sense of choice. Argument is useful only if more than one course of action is possible. We argue and attempt to persuade only when people clash about what is true or false, good or bad, recommended or discommended.

When we encounter a conflict, three responses are possible: (1) avoidance (often undesirable, though sometimes wise); (2) using force or coercion (on the assumption that might makes right); and (3) persuasion (on the assumption that all plausible viewpoints should be weighed).

On a macro level, no. 2 (force) typifies totalitarian and authoritarian societies, in which rulers simply impose their views and tolerate no disagreement. No. 3 (persuasion) typifies democratic societies, in which we believe we’re more likely to discover what is true or wise by listening to a clash of opposing arguments.

That’s where lawyers come in. The central way in which lawyers help preserve democracy is by unshrinkingly advancing the strongest possible arguments for unpopular views, in the sure knowledge that doing so benefits society as a whole. We study the methods of making sound arguments that will resonate—and, we hope, prevail.

Ultimately, that’s one of the legal profession’s chief undertakings. It’s essentially a rhetorical undertaking, if we understand rhetoric in the traditional sense of saying just the right thing at just the right time. It’s all about effective and powerful communication.

Let us add to your knowledge about how it’s done.

Further reading: Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges (2008).

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Professor Garner gives you the keys to make the most of your writing aptitude—in letters, memos, briefs, and more. The seminar covers five essential skills for persuasive writing:

  • framing issues that arrest the readers' attention;
  • cutting wordiness that wastes readers' time;
  • using transitions deftly to make your argument flow;
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  • tackling your writing projects more efficiently.

He teaches dozens of techniques that make a big difference. Most important, he shows you what doesn't work—and why—and how to cultivate skillfulness.

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