Lawyers are only too familiar with the concept of burden of proof in litigation. It is not enough if a lawyer merely puts up an argument in defense of a position. Your argument as a lawyer will have to satisfy the burden of proof required for particular case for you to seize the high moral ground in an argument or court case.
As a lawyer arguing any case, your argument must leave no reasonable doubts in the mind of the court as to the guilty or innocence of your client. To succeed in meeting this mammoth obligation, lawyers take a number of steps before their day in court. Here are 5 simple steps they take.
(1) Research your facts
As a lawyer whatever argument you put up must be supported by the facts of a given case. You cannot rely on hearsay or assumptions. You must get to the very bottom of the matter, know the facts and circumstances of your case and this will help you know where to hinge your argument. In doing this, you may need to meet persons who had direct knowledge of the facts as witnesses, interview them and get their views on the matter
(2) Research your authorities
The lawyer at this stage researches the law to see what applies in that jurisdiction and applies that law to the acknowledge facts involved. Usually the lawyer would look out for favorable precedents and statutes that strengthen his own case and weakens that of the opposing party. They do this by looking up the statutes which are usually codified or published in gazettes by the government. Next they look up the case law – the body of previously decided cases. These are usually in the form of law reports. Law report databases like WestLaw and LexisNexis offer lawyers a wealth of case law. Lastly, they may scour academic journals and legal publications – works of eminent legal scholars for principles and key concepts that can aid their argument. They could also have resort to other secondary sources like textbooks written by acclaimed legal writers.
(3) Prepare your argument
This is part where the lawyer puts pen to paper on his findings. Lawyers write brief of arguments – a concise written synthesis of the facts of the case, the grounds of contention and the legal reasons for the suit and the legal and factual arguments and authorities in support of them. In arguing your authorities in support of your argument, you must be able to apply the precise rule with common sense and demonstrate the soundness of that application to your facts. Equally you must distinguish between the authorities at your disposal. There are binding, persuasive and analogous precedents. A binding precedent is a decision of a higher court in the same jurisdiction which a lower court is bound to follow (the Court of Appeal in Nigeria is bound to follow a decision of the Supreme Court). A persuasive precedent is either a decision of a court having the same jurisdiction as the trial court (a high Court’s decision is only persuasive to another high court) or one decided in a neighboring jurisdiction or a mere dictum as opposed to a holding– this is only persuasive in nature and a court is not bound to follow it. An analogous precedent is a decision in similar case but with distinguishable factual or procedural differences. Courts tend to place a lot of weight on binding precedents in reaching their holding so it is always better to appeal to them in your argument.
(4) Oral presentation in court
At this stage you’ll have to present a convincing argument before the judges and jury in court (in Nigeria, there are no jury trials). You start your oral presentation with your opening, telling the court what you intend proving and then go about doing just that. You have to meet the standard of proof required to win your case by tendering evidence in proof of your claim, cross-examining witnesses and then try discrediting the opposing party’s case and counter arguments.
(5) Closing arguments
At this point the lawyer reminds the court what they promised the court they would prove, how they have proved it and an appeal is made to the court to rule in your favor. In your closing argument, you summarize the case, tie everything together and clarify on whatever you are asking the court to do.
A youngish lawyer with penetrating insight, Patrick Herbert is the Editor-in-Chief and founder of Lawstudenthub, a site dedicated to helping new wigs find their footing in a trickily slippery legal profession and stay current with emerging developments in the legal industry. He holds an LLB from the University of Benin and a BL from the Nigerian Law School, Abuja. In his spare time, Patrick doubles as a professional writer and copyeditor.
If you have any urgent enquiries, you can email him @[email protected]