If you look at the history of common sense in law and legal writing, you’ll find that it’s been a tool for legal analysis since the beginning. The concept of common sense has been around since humans first became aware that they could think critically and make decisions based on what they perceived as being true.
The concept was first used in courtrooms by John Adams during the trial of James Otis in 1761 after he argued that the writs of assistance issued by the British government were unconstitutional because they violated fundamental principles: “a man’s house is his castle.”
| Key Takeaways |
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| 1. Practical Application: Common sense can serve as a valuable tool in legal writing and analysis, offering practical insights that supplement formal legal reasoning. |
| 2. Balance with Logic: While common sense can enhance understanding, it should be balanced with logical analysis and adherence to legal principles in complex cases. |
| 3. Cultural Considerations: Different cultures and societies may interpret common sense differently, influencing its role in legal decision-making. |
| 4. Enhancing Communication: Incorporating common sense into legal writing can enhance communication by making arguments more relatable and accessible to readers. |
| 5. Critical Thinking: Legal professionals can strengthen their use of common sense by cultivating critical thinking skills and maintaining alignment with legal standards. |
Start With Simple Statements
You should start with a statement that is simple and clear. A good way to begin an issue in a legal memo or brief is to identify the issue as it relates to the case at hand. For example, you might say: “In this case, courts will be asked whether individuals have a right under federal law not to be forced into union membership against their will.”
If you are introducing a major part of your analysis (for example, applying a legal rule or interpreting a statute), you can use something like: “As we have seen above, the court’s opinion relied heavily on its interpretation of federal law on this matter.
When introducing important principles in your analysis (such as common law principles), simply state what those principles are without adding any extra information: “Under common law principles…”
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Even Simple Statements Need To Be Argued
State a simple statement.
Use that statement as the basis for a conclusion or argument, making sure to provide support for the statement. For example, “All Americans are encouraged to look out for their neighbors in times of need.
This could be used as an explanation for why Americans should not be surprised by generosity during disasters such as Hurricane Katrina: “After all, this is what we were taught as children that all Americans look out for each other when one member of our community is in trouble.”
Use that same simple statement as the basis for a question: “Is all this true?” For example: “In today’s society, it can feel like we are surrounded by people who are constantly selfish and only looking out for themselves.” This could help lead to an analysis of whether or not people behave this way (and if so, why).
Make Sure Your Statement Is A Proportionate Response
Proportionality is a concept that will come up time and time again when you’re writing in legal contexts. It’s the idea that your response to a situation should be proportionate to the situation at hand.
Example 1: Your neighbor leaves their trash out on the curb, which then attracts rats that eat some of your trash and poop in your yard (gross).
You call them out on this behavior and they immediately apologize, saying they’ll make sure it doesn’t happen again. This is probably not an appropriate response; it isn’t proportional because it doesn’t address any harm done or does anything about preventing further harm from happening in the future.
Example 2: You are staying at someone’s house for two weeks while on vacation, but when you get there you realize their bathroom has no toilet paper or soap (you forgot theirs was out of order). The host’s reaction? “Oh yeah!
I forgot to tell you! We’re having guests over tonight so we needed all our supplies.” This is also not proportional because now both parties know that something needs fixing before future guests arrive it shouldn’t take another guest being inconvenienced by this issue before action is taken!
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Be Aware Of Complex Statements That Go Beyond The Case Facts
It is important to be aware of your statements and how they relate to the facts of the case. Statements that seem to go beyond or contradict the facts can weaken your argument.
In a criminal case, you might say “The defendant was deliberately indifferent when he…” Such a statement requires an analysis of intent; it goes beyond simply proving that there was no medical care provided by the defendant.
For example, if there is evidence that the defendant was sleeping at his desk while his employees were performing CPR on their sick child next door, then this could be used as evidence of intent. In this situation, you would need to analyze whether such an action indicates deliberate indifference (and if so) what kind of punishment should be imposed on him/her.
Take Extra Care When Using Complex Statements As Reasoning Tools
If you are using a complex statement as your reasoning tool, take extra care to ensure that your reader understands the statement. This is because more complex statements can be difficult for readers to understand and apply.
For example, if someone were trying to explain the law about trespassing on private property by saying “Trespassing is when someone enters someone else’s land without permission,” it would be harder for them to remember than if they were simply told, “You cannot enter somebody else’s land without their permission.”
To help readers straightforwardly understand legal concepts and avoid ambiguity, consider keeping things simple by using clear language when crafting your sentences.
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Be Careful With “Too” And “So”
When you’re writing a document and you come across a sentence that starts with “too” or “so,” it’s a good idea to revise the sentence so that it uses either one or the other. If your readers see both words in the same sentence, they might think you’re using them incorrectly.
To help clarify what we mean, let’s look at some examples of how this mistake can be made and how we can fix them:
“The too-clever legal analyst may read all of these cases as indicating that there are two ways of conceptualizing liberty under an Eighth Amendment proportionality analysis.
This sentence is confusing because it says both things that there are two ways to look at liberty when examining proportionality matters, but also that there could only be one way (if everything else goes wrong).
The reader might not understand which version of reality you’re trying to communicate here. Instead, try: “Under an Eighth Amendment proportionality analysis, liberty may be conceptualized in two different ways.” The use of “may” shows us that we aren’t committing ourselves to either theory; instead, we’re just saying they exist!
Be Wary Of Using Slogans As Reasoning Tools
Slogans are a useful tool for encapsulating a particular point or perspective. However, they’re not always the best option when you’re making your reasoning clear.
When using slogans as reasoning tools, be sure to consider whether it would be better to cite an authority or principle instead. Slogans often don’t add any value to the analysis and can be difficult for readers to understand.
If you choose to use a slogan as a reasoning tool, be careful that it does not introduce confusion into your argument. It’s also important to note that slogans can mean different things depending on who uses them and what they mean may not align with how you use them in your writing!
Avoid Trivial Or Superficial Analogy Reasoning Tools
Analogies are a useful way to explain a complex concept. They can be used to explain how something works or what it looks like, for example. The structure of the analogy should make sense to the reader and provide some insight into the topic at hand.
If you find yourself explaining something using an analogy that is too obvious or trivial, try re-examining your choice of words and make sure that they’re not simply restating what everyone already knows!
For example: “The defendant’s defense was that he was acting in self-defense because he thought the victim was attacking him with a knife when it was just his wallet because he had dropped it on accident earlier in their altercation outside of Starbucks where they both worked together as baristas.”
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Keep Your Analogies Relevant And Compelling
As with any reasoning tool, you should use analogy reasoning with caution. Analogy reasoning can help make a point and can be an effective tool for persuading the reader, but it can also mislead or distract from your argument. To ensure that you are using analogy as effectively as possible:
- Make sure the analogy is relevant to the facts of your case.
- Make sure that you sufficiently describe how and why the two things being compared are similar (in other words, make sure you provide evidence).
- Consider whether your comparison is too complicated or detailed; if it is, consider simplifying it so that readers can better understand its significance.
Remember That Analogies Devalue Over Time And With Use
Analogies have many uses. They can be used to make a point, support a position, or prove an argument. Analogies are also useful when you’re trying to persuade someone who doesn’t share your beliefs or opinions.
In that case, analogies can help you explain why you believe what you do in such a way that makes sense for the other person or at least makes it easier for them to understand than if they had never seen any parallels before.
Avoid Hypotheticals Unless You Must Use Them To Explain A Rule Or Principle
Hypotheticals are not a good way to explain a rule or principle. A hypothetical is a “supposed situation,” and as such, it is not necessarily true. You can’t prove your point by telling the reader about this never-before-seen example where all of your arguments apply.
Hypotheticals are only useful in specific situations: when you need to show how something works in practice (e.g., “Let’s say I’m wearing my pants inside out.”).
when you want to demonstrate how two different rules interact with each other (e.g., “Say I’m driving on the highway; what happens if I try backing up?”), or when you need an example that’s more easily comprehensible than real life (e.g., if we were talking about taxes, we might create an imaginary person and show how much money she would owe).
Hypotheticals don’t help prove anything they’re just examples! And if they’re not supposed to be examples of real life, then why are they called “hypothetical”?
Think about what happens when someone says something like “If you look at this wall through binoculars…” or “Imagine that there was some guy who lived alone on an island…” These statements seem silly because they aren’t based on anything factual; they’re just little stories people make up so they can talk about them later with their friends!
Limit The Number Of Hypotheticals You Use In A Document
Limit the number of hypotheticals you use. As we discussed earlier, it’s common for people to write legal documents that include many hypothetical situations.
While these examples can help explain concepts, using too many of them at once will make your writing seem more like an essay about hypothetical situations than a persuasive argument for why a court should rule in favor of your client’s case.
Some hypotheticals are more important than others. When choosing which hypothetical situations to include in your document, consider which ones would have the most impact on a judge or jury member who is deciding the case at hand (i.e., those who have not yet been swayed by other evidence).
For example: if one side argues that its product has saved millions of lives over time while another argues otherwise with evidence showing how its product causes cancer after prolonged exposure you should probably focus on illustrating how these two arguments differ.
Before going into detail about what happens when someone uses this particular product every day for ten years straight while also eating lots of fruit during that period because their body produces lots more stomach acid which makes them susceptible to getting colon cancer because they’re eating junk food all day long…etcetera ad nauseam until death do us part!
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Don’t Create Multiple Hypotheticals Choose One And Stick With It
If you are going to use a hypothetical, choose one and stick with it. Don’t create multiple hypotheticals. The reader does not want to be confused by multiple hypothetical situations that may or may not relate to the same issue. Using only one hypothetical will help ensure that your points are clear and easily followed by the reader.
Use one to explain a rule or principle:
For there to be an agreement between two parties, they must consent at least implicitly.”
If X was invited into Y’s home, then X cannot later claim he didn’t know what was going on inside the house.”
Use one to explain a point of law:
Use hypotheticals to illustrate how laws apply in certain circumstances when discussing points of law such as contract formation or criminal intent (e.g., intent vs motive).
Avoid Phrases Like “Assume For Purposes Of This Analysis That
A good lawyer should aim to persuade the reader of his/her position. This can be a challenging task when some of your supporting arguments are based on assumptions.
An assumption is something that cannot be proven and therefore can seem weak or irrelevant to an argument. It is a difficult thing to show why an assumption should matter in legal analysis and writing, but it’s not impossible!
The best way to avoid phrases such as “assume for purposes of this analysis” is by doing the necessary research and thinking through all possible counter-arguments before writing your first draft.
If you find yourself stuck with certain sections that need more development, remember that there’s nothing wrong with using phrases like “for purposes of this analysis.
However, once your first draft is complete and ready for critique from others (e.g., peers), try not to use these types of phrases without good reason they’re often unnecessary and may detract from the clarity or persuasiveness of an argument; instead, consider using another language such as “assuming” or even just plain old “if.”
Conclusion
In short, you should be careful when using analogies, hypotheticals, and slogans as reasoning tools. They are powerful tools, but they can also be dangerous if used incorrectly. The best way to avoid the pitfalls of these three types of reasoning is to limit their use in your writing and analysis by sticking to plain language whenever possible.
Further Reading
Explore these additional resources to deepen your understanding:
Common Sense and Legal Decision-Making: A scientific perspective on how common sense influences legal judgments.
Common Sense on Wikipedia: Delve into the comprehensive overview of the concept of common sense.
Logic and Common Sense: An academic exploration of the intricate relationship between logic and common sense.
FAQs
What role does common sense play in legal reasoning?
Common sense often informs legal reasoning by providing practical and intuitive insights that support legal arguments and decisions.
Can common sense be relied upon in complex legal cases?
While common sense can offer valuable perspectives, complex legal cases may require a more nuanced analysis of statutes, precedents, and legal principles.
How does the interaction between logic and common sense affect decision-making?
The interplay between logic and common sense shapes decision-making, as logical analysis is complemented by intuitive judgments grounded in common sense.
Are there cultural variations in the interpretation of common sense in legal contexts?
Yes, interpretations of common sense can be influenced by cultural and societal factors, which can impact legal reasoning across different jurisdictions.
How can legal professionals enhance their use of common sense in legal writing?
Legal professionals can enhance their use of common sense in legal writing by practicing critical thinking, seeking diverse perspectives, and ensuring that common sense aligns with legal principles.
Costantine Edward is a digital marketing expert, freelance writer, and entrepreneur who helps people attain financial freedom. I’ve been working in marketing since I was 18 years old and have managed to build a successful career doing what I love.