The Tools of Argument: How the Best Lawyers Think, Argue, and Win
By Joel P. Trachtman
Date of Publication: 2013
What Is This Book About?
In The Tools of Argument: How the Best Lawyers Think, Argue, and Win, Joel P. Tractman combines the skills of reasoned persuasion along with the tools of argument to give his readers knowledge that will enhance their legal argument abilities throughout their careers. This book is written with a light tone and is incredibly conversational. While reading Joel P. Tractman’s writing style, I felt like I was sitting in a lecture hall watching a well-liked professor take the “stage” by storm.
What Did I Like About the Book?
I liked a lot of things about this book from the very beginning. The first thing I enjoyed was while building the foundation for his book, the author opened the conversation by answering the question: What is a lawyer? Tractman says that lawyers are experts, and their expertise is in two areas. The first being expertise in how the legal system works and “how all the written and unwritten procedural rules apply to guide the determination and application of the law.” The second expertise in a lawyer’s knowledge is on the substantive rules of law and he provides examples like the rules protecting patented technology and forbidding the sale of cocaine. Often when we describe lawyers, they’re thought of as brainiacs advocating zealously for their position. I liked the out of the box approach taken by Tractman, and this set my expectations high for the rest of the book.
The next thing I liked about this book has been in the back of my mind since I read it. Growing up, I feel like we were always taught to do the right thing! But Tractman wrote:
The idea that we have a legal system rather than a system that simply says, “Do what is right in each circumstance,” represents a recognition that we must compromise about what we think may be right in order to live in a society with others who have varying visions of what is right.
This quote sparked my curiosity and made me think. While I think there are many areas of our legal system that can be improved (how? I’m not so sure), I do think it’s important to also take a moment to recognize that our legal system governs millions of different kinds of people, and with that, all their opinions. What I think is right, may not be what the next person sees as being right. Compromise is important, and it’s crucial to this system “succeeding.”
As a former athlete, I loved when Tractman drew an analogy between athletes and lawyers – noting that both know the small sources of advantage are important. Both athletes and lawyers know each small advantage builds them up a larger advantage, which ultimately helps them wins them their game or case. Tractman wrote that both “achieve superstar status by seeking every small source of advantage and assembling these multiple small advantages into dominance.”
Speaking of analogies, the last thing I really liked about this book was the use of Tractman’s examples. Tractman provides real-life relatable examples for his readers to understand complex legal issues, and after reading them, you find yourself thinking “huh, that concept really wasn’t all that confusing after all!” My favorite example is below:
Analogous arguments may be made outside the courtroom in everyday life. Children do this all the time. If they are seeking permission from their parents for an activity, they may select the parent to ask based on their expectations about that parent’s relative permissiveness compared to the other. They may even ask the second parent after being turned down by the first parent. The parent may respond with the procedural rule that Dad is not permitted to contradict Mom, thus, denying the child’s request. Parents also often apply a rule of res judicata, as described in section 3.4: once a decision is made, it’s final.
What Didn’t I Like About the Book?
This is going to be a very nitpicking section for me to even write because there wasn’t much, I did not like about this book. But one thing I certainly did not like was the cover. The cover of this book is obviously very bland. There is barely anything on it, and it looks so boring. To be honest, I delayed reading this one and kind of judged it as boring before I even read one page! (I know, I know, don’t judge a book by its cover, Michaela!) But when I started reading, I was so surprised at the light and conversational tone this book takes. The cover simply doesn’t match Tractman’s writing style it seems, and I wish they did.
What Did This Book Teach Me About Advocacy?
Along with teaching his readers about legal arguments, Tractman finds it necessary to discuss the concept of legal writing, which completely makes sense. He notes that there is a concept called, “analysis and synthesis” which means lawyers break a legal question down into its components, or elements, and then analyze each component separately. For parties who bear the burden of proof, this is even more so crucial. Tractman notes this idea is the secret of being a successful legal writer. He explains that if one wants to be a successful legal writer, in the first paragraph they have to break the crime or claim into elements to be analyzed. Then in your body paragraphs, examine each element and determine if it is factually satisfied. Then finally have a good conclusion, where you state if it was satisfied or not. While this may seem foundational and too “easy” for some, breaking down legal writing like this may help some of his readers find their organization in good legal writing.
Tractman devotes a chapter entirely to Arguing about the Meaning of Tests: Interpretation and that chapter includes a discussion on original intent which is the argument that we should understand the text’s meaning as the parties originally understood it. Tractman says there are three kinds of original intent:
- Subjective Original Intent: Ask what the authors had specifically in mind.
- Objective Original Intent: Ask what the words that the authors used generally meant at the time the authors used them.
- Objective Original Intent with Intended Evolutionary Change: Ask what the words that the authors used generally meant at the time the authors used them, but also assume that the authors intended for their words to develop new meanings as the world changed over time and language in common contemporaneous use adapted.
Through these definitions, we’re taught that yes, original intent is one method to argue to the court how your text should be interpreted, but we may be able to get even narrower through original intent to make it even more consistent with our argument and ultimately more persuasive.
How Am I Going to Be Able to Be a Better Advocate Because of This Book?
First, I think the concept discussed earlier, “analysis and synthesis” is going to help me become a better advocate. When I am overwhelmed, it really helps me to break down my tasks, and look at each thing, one at a time. So, this concept will help me in the future when I may be given a massive concept in a case. I will need to remember to break each piece down and tackle them all individually.
Finally, Tractman discusses ethics, and we are reminded of the Number 1 rule of trial advocacy – to make sure you always look good. However, I really liked the way Tractman explains it. Obviously, you never want to lie as a lawyer. It’s a negative stereotype to deal with all the time. But Tractman phrases it that “lying to win the argument in which you are currently engaged is not worth the price of losing one’s reputation for truthfulness.” While it would be nice to win the case at hand, there will be others – except there won’t be others if you lie and kill all your credibility with your firm, colleagues, and the court.
 Joel P. Tractman, The Tools of Argument: How the Best Lawyers Think, Argue, and Win, 9, 2014.
 Id. at 27.
 Id. at 30.
 Id. at 32.
 Id. at 74.
 Id. at 173.