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Art of Written Persuasion: Part IV - What Makes a Good Problem-Solving Model?

By Troy Simpson LLB (Hons), Published on January 19, 2009

Introduction

In my previous article, I suggested that problem-solving models can help lawyers (and law students) to solve legal problems systematically and to communicate legal solutions persuasively in writing. I listed several specific problem-solving models, from IRAC to FAILSAFE. For this present article, I wanted to find out what makes a good problem-solving model so that I might develop a good problem-solving model of my own.2

After looking at the problem-solving models that I listed in my previous article, and having read more about legal problem-solving generally,3 I have come up with a 'wish list' of traits that I think any good legal problem-solving model should possess. I have published my wish list below.

1. Sufficiently detailed


‘Suppose we should provide … the instructions: “Map the problem”. Would that help him to solve a problem? Probably not very much … The steps have to be broken down into more specific substeps.’4 A problem-solving model should provide sufficient detail. Most commentators agree that problem-solving involves several complex elements. From these elements, teachers and commentators ‘have naturally extracted elements they can deal with and concentrated on them’.5 But simple formulas mean ‘the teacher remains in the classroom with the simplification, while the practitioner faces the complexity’.6

For example, advice like ‘translate the events into legal terms’ does not help to do the translation.7 Translating events into legal terms comprises a problem in its own right. Advice like ‘Tell a story’ does not explain how to tell a story.8 ‘Do thorough research’ does not explain what ‘thorough’ research means.9 ‘Know the record’ does not tell you when the record moves from unknown to known.10 The successful problem-solver must break these steps into more detailed sub-steps.11

2. Sufficiently simple


Although a good problem-solving must provide sufficient detail, it must also convey ideas simply enough for people to understand and actually use the model. Some problem-solving models seem too complex, such as the advanced versions of the problem-solving model developed by HFM Crombag and others, which comprises more than 40 steps.12 At the very least, problem-solving models should use clear, simple language.13 Some psychological literature, in particular, uses jargon that I find incomprehensible.14

3. Fluid


Good problem-solving models capture the interdependence of the analytic, searching, and application phases of problem-solving. Legal problem-solvers should view each facet in the context of the others.15 Thus, the model should incorporate the ‘webbed complexity of the mind shuttling between the phases’.16

4. Interdisciplinary but practical


Good problem-solving models recognise that effective problem-solving uses theories from multiple disciplines, such as politics, psychology, and advertising.17 Lawyers can learn much from persuasion theories in other fields:

‘Take the blinkers off, look around, and the arts of persuasion are much used in other disciplines. Possibly a few transferable tips and skills might be found among them.’18

But the model must combine theory with practicality, by applying the interdisciplinary theories to the practical task of legal problem-solving.19

5. Centres on the audience


Most commentators agree that to persuade an audience, you must know the audience and adapt your proposed solution to that audience:20

‘Start and finish with the audience. Know them. Journey with them. Grab their attention and keep it. If you ever put your own thoughts above or outside those of the audience you deserve to fail. You probably will. Your competitors who are better at seeing the problem through the eyes, ears and feelings of the audience will defeat you. They deserve to.21

But lawyers face problems different from people in other persuasion situations—such as politicians persuading voters, sports psychologists motivating elite athletes, or advertising agencies selling a product. A lawyer’s audience comprises: 22

Yet, frustratingly, few commentators explain how to develop your arguments from the judges’ point of view:

‘[L]egal research instruction and legal research texts’ discussions of research method have focused almost entirely upon finding out the relevant published law. They have downplayed, if not ignored, research methods for learning about the people who play the leading roles in the lawsuit and about the informal rules and practices that help determine the outcome.’23

6. Considers more than ‘rules’


Good problem-solving models consider more than just legal ‘rules’. In particular, good problem-solving models emphasise facts.24

7. Ethical


Models that teach persuasive writing must teach only legitimate techniques that never exceed ethical limits.25 ‘Legitimate techniques’ involve techniques that merely increase the impact of the lawyer’s arguments.26 ‘Illegitimate techniques’ involve techniques that subvert the truth-seeking function of adversarial law.27

8. Outcome-oriented


For lawyers, achieving good outcomes, within ethical limits, comprises the most important trait of a good problem-solving model. Some authors have shown the success of their models, which suggests problem-solving models can work. John Wade provides anecdotal support, citing ‘enthusiastic student (and practitioner) response’ over several years of explaining and testing ‘MIRAT’.28 Jeffrey Barnes provides the results of 2 studies, including a study that tested the benefits of ‘IRAFT’.29

9. Acknowledges limitations


But problem-solving models must also acknowledge their limitations. The study that showed the benefits of IRAFT as a problem-solving model also showed ‘that simply giving … an expert model will not solve the difficulties’.30 There exists no one right way of solving legal problems. One must use any problem-solving model flexibly and with common sense.31

Conclusion


Having looked at specific problem-solving models, and having examined the qualities of good problem-solving models, I have developed my own problem-solving model in Win More Cases: The Lawyer's Toolkit. Now is not the time, and this article is not the place, to advertise my own work; and readers can decide for themselves how well the Toolkit meets the criteria of a good problem-solving model. But in developing Win More Cases, I discovered and got to use several practical tools (software) that can be integrated into the problem-solving process. In my next article, I will outline these tools and I will show how these tools relate to solving legal problems persuasively in writing.

Footnotes


1 Troy Simpson, The Art of Written Persuasion: From IRAC to FAILSAFE—A Compilation of Legal Problem-Solving Models (2008) at 19 January 2009.

2 The result is Win More Cases: The Lawyer's Toolkit (2008), available from http//www.win-more-cases.com.

3 Especially Margot Costanzo, Essential Legal Skills: Problem Solving (1995) and Stephen Nathanson, ‘Problem-Solving in Professional Legal Education’ (1989) 7 Journal of Professional Legal Education 121.

4 HFM Crombag et al, ‘On Solving Legal Problems’ (1975) 27 Journal of Legal Education 168, 175.

5 Margot Costanzo, Essential Legal Skills: Problem Solving (1995) 4.

6 Margot Costanzo, Essential Legal Skills: Problem Solving (1995) 4.

7 HFM Crombag et al, ‘On Solving Legal Problems’ (1975) 27 Journal of Legal Education 168, 175.

8 Ruth Anne Robbins and BJ Foley, ‘Fiction 101: A Primer for Lawyers On How To Use Fiction Writing Techniques To Write Persuasive Facts Sections’ (2001) 32(2) Rutgers Law Journal 459, 459.

9 See similarly, John E Nelson III, ‘Building a Brief’ in Priscilla Anne Schwab (ed), Appellate Practice Manual (1992) 228, 228.

10 See similarly, John E Nelson III, ‘Building a Brief’ in Priscilla Anne Schwab (ed), Appellate Practice Manual (1992) 228, 228.

11 HFM Crombag et al, ‘On Solving Legal Problems’ (1975) 27 Journal of Legal Education 168, 175.

12 HFM Crombag et al, ‘On Solving Legal Problems’ (1975) 27 Journal of Legal Education 168.

13 Stephen Nathanson, ‘Problem-Solving in Professional Legal Education’ (1989) 7 Journal of Professional Legal Education 121, 123.

14 Compare the references cited in Paul T Wangerin, ‘A Multidisciplinary Analysis of the Structure of Persuasive Arguments’ (1993) 16 Harvard Journal of Law and Public Policy 195, fn 20 and 21.

15 Steven M Barkan, ‘On Describing Legal Research’ (1982) 80 Michigan Law Review 925; Margot Costanzo, Essential Legal Skills: Problem Solving (1995) 80, 117

16 Margot Costanzo, Essential Legal Skills: Problem Solving (1995) 80; HFM Crombag et al, ‘On Solving Legal Problems’ (1975) 27 Journal of Legal Education 168, 176.

17 See, for example, Steven D Stark, Writing to Win: The Legal Writer (1999) 64–70 (applying advertising principles to legal writing).

18 Hugh Selby, ‘Arguing for Other Persuasions’ (3 August 2007) Lawyers’ Weekly Online (accessed 20 October 2007).

19 See, for example, Paul T Wangerin, ‘A Multidisciplinary Analysis of the Structure of Persuasive Arguments’ (1993) 16 Harvard Journal of Law and Public Policy 195; Charles J Ten Brink, ‘A Jurisprudential Approach To Teaching Legal Research’ (2005) 39 New England Law Review 307.

20 See, for example, Thomas Michael McDonnell, ‘ Playing Beyond the Rules: A Realist and Rhetoric-Based Approach to Researching the Law and Solving Legal Problems’ (1998) 67 UMKC Law Review 285, 288.

21 Hugh Selby, Arguing for Other Persuasions 3 August 2007) Lawyers’ Weekly Online (accessed 20 October 2007).

22 Nicholas M Cripe, ‘Effective Appellate Argument’ (1984) 70 ABA Journal 56, 56–7.

23 Thomas Michael McDonnell, ‘ Playing Beyond the Rules: A Realist and Rhetoric-Based Approach to Researching the Law and Solving Legal Problems’ (1998) 67 UMKC Law Review 285, 288.

24 Thomas Michael McDonnell, ‘Playing Beyond the Rules: A Realist and Rhetoric Approach to Researching the Law and Solving Legal Problems’ (1998) 67 UMKC Law Review 285, 287.

25 Margot Costanzo, Essential Legal Skills: Problem Solving (1995) 81.

26 See Michelle Pan, ‘Strategy Or Stratagem: The Use of Improper Psychological Tactics by Trial Attorneys to Persuade Jurors’ (2005) 74 University of Cincinnati Law Review 259.

27 See Michelle Pan, ‘Strategy Or Stratagem: The Use of Improper Psychological Tactics by Trial Attorneys to Persuade Jurors’ (2005) 74 University of Cincinnati Law Review 259.

28 John H Wade, ‘Meet MIRAT: Legal Reasoning Fragmented Into Learnable Chunks’ (1990/91) 2 Legal Education Review 283, 297.

29 See further Jeffrey Barnes, ‘Teacher v Student: The Role of Fundamental “Conceptions of Reality” in the Preparation of a Legal Opinion’, paper presented at National Language and Academic Skills Conference 27–28 November 2000, La Trobe University, Bundoora.

30 Jeffrey Barnes, ‘Teacher v Student: The Role of Fundamental “Conceptions of Reality” in the Preparation of a Legal Opinion’, paper presented at National Language and Academic Skills Conference 27–28 November 2000, La Trobe University, Bundoora.

31 Stephen Nathanson, ‘Problem-Solving in Professional Legal Education’ (1989) 7 Journal of Professional Legal Education 121, 123.


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