Wednesday, March 1, 2017

Making arguments

A thought on structuring legal arguments, whether in class discussions or papers (and this goes not only for civil procedure but for all classes):

It is important to think about all the possible legal rules and how they all fit together and to structure your argument in the best way possible. You eventually will (or at least may) get to everything. But there is an order in which to do it and you must figure out your hard and soft positions and make your case accordingly, being careful not to conflate them or to give up on one too easily.

So consider Coke's position on its motion for a protective order (or opposition to the Bottler's motion to compel): Coke had two arguments: 1) We should not have to produce and 2) If we have to produce, it should be under certain terms and conditions. Both arguments must be made and they are not mutually exclusive. But think about how you want to present them and why you should not give up on # 1 too quickly to fall back to # 2. So the initial focus (and where I was trying to direct the conversation) was on what Coke should argue to avoid producing at all, rather than falling too quickly into conceding production and then trying to limit the business harm.