Types of Legal Argument
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Types of Legal Argument
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Re: Types of Legal Argument
#2A few years back, I had a co-worker that was hostile to me. I won't go into the details why there's that hostility, but what happened was this:
- In the middle of a (chat) conversation that was going nowhere about a certain issue, he told me that I'm "difficult to talk to."
- I replied, "I can say the same thing to you."
This co-worker then complained to management, that I was being a bully and disrespectful. I provided the chat logs showing that the initial statement ("I'm difficult to talk to") was unprovoked, and I was civil all throughout our chat.
But this experience led me to wonder if there are legal concepts that I could have invoked in my defense.
The article mentions someone punching in the face.
What if this is the scenario: A punches B in the face. B punches A, as retribution. The physical and emotional damage to both parties are equal in nature. But A sues B for assault.
Will the case be dismissed? on what legal grounds? What are the applicable legal principles?
Re: Types of Legal Argument
#3A very insightful and thought-provoking summary of the traditions and methods of legal reasoning. Makes you realise how law, philosophy, logic, policy, societal traditions are tightly integrated in what we assume to be "independent" judicial systems. There's some spirit and philosophy behind the text of the law, there is morality involved with each particular act of the suspected person, and matching a particular case to a particular rule is a hard problem.
Re: Types of Legal Argument
#4A few years back, I had a co-worker that was hostile to me. I won't go into the details why there's that hostility, but what happened was this: - In the middle of a (chat) conversation that was going nowhere about a certain issue, he told me that I'm "difficult to talk to." - I replied, "I can say the same thing to you." This co-worker then complained to management, that I was being a bully and disrespectful. I provi…
Many legal systems allow limited retribution, if it can be seen as proportional to self-defense.
That said, there's an overarching idea that one shouldn't try to "get even" by lowering oneself to the other person's level. Proportionality as a legal concept makes it legal to defend yourself, but illegal to escalate the threat.
E.g. one can use fists against fists, but if B stabs A to death, it will be hard to claim it was in self defense, since there is no obvious proof that A was looking to murder B by punching B to death.
If it is possible to refrain from violence and use the justice system to replace it (by having B press charges against A), then that ought to be a more civil outcome.
One could argue that the reason to have a legal system is so that B does not have to go around preparing to punch back, but can spend her time doing more productive things and that is how we end up with a civil society, with a high level of productivity and freedom of expression, and a minimum level of violence.
Re: Types of Legal Argument
#5A few years back, I had a co-worker that was hostile to me. I won't go into the details why there's that hostility, but what happened was this: - In the middle of a (chat) conversation that was going nowhere about a certain issue, he told me that I'm "difficult to talk to." - I replied, "I can say the same thing to you." This co-worker then complained to management, that I was being a bully and disrespectful. I provi…
Many legal systems allow limited retribution, if it can be seen as proportional to self-defense. That said, there's an overarching idea that one shouldn't try to "get even" by lowering oneself to the other person's level. Proportionality as a legal concept makes it legal to defend yourself, but illegal to escalate the threat. E.g. one can use fists against fists, but if B stabs A to death, it will be hard to claim it…
Clearly explained. Thanks!
Re: Types of Legal Argument
#6A few years back, I had a co-worker that was hostile to me. I won't go into the details why there's that hostility, but what happened was this: - In the middle of a (chat) conversation that was going nowhere about a certain issue, he told me that I'm "difficult to talk to." - I replied, "I can say the same thing to you." This co-worker then complained to management, that I was being a bully and disrespectful. I provi…
In conceal carry weapon courses in the USA, there's three factors that stand out in a self defense situation. Ability, Opportunity, and Jeopardy. Is the person capable of hurting you, can he do it at a given moment, and is he doing it or about to do it? With few exceptions, those who shoot in self defense and abide by these three factors, don't go to prison.
You can watch some Massad Ayoob videos on the topic, though they are pretty old.
Re: Types of Legal Argument
#7A few years back, I had a co-worker that was hostile to me. I won't go into the details why there's that hostility, but what happened was this: - In the middle of a (chat) conversation that was going nowhere about a certain issue, he told me that I'm "difficult to talk to." - I replied, "I can say the same thing to you." This co-worker then complained to management, that I was being a bully and disrespectful. I provi…
Here is the answer for a typical state in the United States.
In a civil suit, a punch in the face typically results in a claim of battery (among other possibilities, such as assault). A battery is an “intentional tort” where a person intentionally causes a harmful or offensive contact with another person.
One defense to an intentional tort like battery is “self defense.” It varies from state to state, but generally a person may use reasonable force to defend against an offensive contact that he or she reasonably believes is about to happen, but the defense must be proportional.
So in your scenario, person A sues B for assault. If person A admits that he was the initial aggressor and the response was reasonable and proportional, the case may well be dismissed. If they do not directly admit it but the facts show they do admit show that the response was proportional as a matter of law, the case will also be dismissed.
If not, the case will continue to summary judgment. If, after discovery, no reasonable juror could find that the response was not reasonable and proportional (i.e., there is no genuine dispute of fact), then the court will find for person B. But if a reasonable juror could find that the response was not reasonable and proportional, the case will continue to trial.
(Both dismissal and summary judgment will only happen if person B moves for relief, but that almost always happens)
Obviously, person A’s attorney is going to know these rules going in, and they are going to do their best to portray the facts in a way that the claim will survive motions to dismiss and for summary judgment and make it to trial.
Once you make it to trial, anything can happen, because it is in the hands of the jurors.
After the jurors render a verdict, the court will review that verdict to determine again if the prevailing party presented sufficient evidence for a reasonable juror to find in their favor. The court will also evaluate whether any errors occurred in the trial that warrant a new trial. Then the losing party has an opportunity to appeal those and other rulings of the court.
Re: Types of Legal Argument
#8A few years back, I had a co-worker that was hostile to me. I won't go into the details why there's that hostility, but what happened was this: - In the middle of a (chat) conversation that was going nowhere about a certain issue, he told me that I'm "difficult to talk to." - I replied, "I can say the same thing to you." This co-worker then complained to management, that I was being a bully and disrespectful. I provi…
Many legal systems allow limited retribution, if it can be seen as proportional to self-defense. That said, there's an overarching idea that one shouldn't try to "get even" by lowering oneself to the other person's level. Proportionality as a legal concept makes it legal to defend yourself, but illegal to escalate the threat. E.g. one can use fists against fists, but if B stabs A to death, it will be hard to claim it…
Of course, if one person is physically stronger than another, then more tools are required to respond proportionally; tools that may make an accidental over-retaliation more likely.
While society prefers civil solutions to physical conflicts, civil solutions take longer, often require social, organizational and financial capital, and have less certainty in outcome. Society overall is better, but individuals are often not as well served.
The system is stacked in favour of the more powerful at every level, shocker.
Re: Types of Legal Argument
#9This article is the type of tripe they teach us in law school that has no real world application.
I get the point the author is trying to make: that you can distill argument down to its essence, and that you should.
What the argument fails to take into account (to name two) is:
1. We have “splits of authority.” One court says the law is Y and one court says the law is X. Now it’s roses are red in this jurisdiction and pink in another. The whole thing goes off the rails.
Argue your point as best you can and hope!
2. Many statutory schemes have become insanely complex so as to make distilling arguments to their essence nearly impossible. Additionally, each piece of complexity is another opportunity for courts to diverge in interpretation (see point 1).
To be sure, the classic common law claims —- murder, robbery, larceny, battery, etc — are amenable to this type of distillation, but that’s so little of what the practice of law is anymore.
Students get an education like described in the article, and then they come out woefully unprepared for the real world.
Re: Types of Legal Argument
#10A few years back, I had a co-worker that was hostile to me. I won't go into the details why there's that hostility, but what happened was this: - In the middle of a (chat) conversation that was going nowhere about a certain issue, he told me that I'm "difficult to talk to." - I replied, "I can say the same thing to you." This co-worker then complained to management, that I was being a bully and disrespectful. I provi…
Provocation is a thing, e.g. reducing murder to manslaughter or 2nd / 3rd degree murder if the victim provoked the attacker first somehow.
Self-defense is a thing, it's sometimes reasonable to attack a person before or while they are attacking you.
Retribution is not a legitimate grounds for assault, that's what the justice system is for.
Your example is light on details, but if it's just retribution without an element of provocation / self defense (e.g. B punches A one year after A punches B), then there wouldn't be a reason to dismiss such a case.
As for your conversation, one principle in any organization is to remain polite and professional at all times, even (and especially) when other people are not. If a conversation is "going nowhere", telling the other person that they are "difficult to talk to" could be a legitimate observation or constructive feedback. Management have no interest in analyzing the rights and wrongs of such situations, they only care about who acted professionally, and not about the order and reasons behind such behavior.