At this stage, you should have a real or virtual stack of authorities that you plan to use in support of your client’s case.
Now, you must make the move from that stack of paper or digital documents to some sort of an outline. Effective legal arguments are usually best organized around issues, rules, and arguments rather than around authority cases.
The court’s major concern is not whether the cases you have found are analogous to your client’s case. Instead, the court wants to know the issues that your case presents, the rules that govern those issues, and how those rules should apply to your case. Of course, you will probably use cases to illustrate or explain the rules that you identify, but the rules, rather than the cases, should be the focus of your analysis.When trying to identify the rules that you want to use to structure your argument, it may help you to think of possible categories of arguments. Since legal arguments are typically based on authority, you may try to develop your arguments based on the categories of authority, as noted in Chapter Three: case law, enacted law (constitutions, statutes, and regulations), or extra-legal authority. Since these different types of authority may interact within one argument, however, you may wish to think of categories from a different perspective. Wilson Huhn has identified five different types of arguments: text, precedent, intent, policy, and tradition.1
If the rules that govern your case are well established, and you must argue how those rules apply, you can structure your argument around those established rules.2If your case is not governed by well-established rules, or if you are struggling to discover or articulate3the relevant rules, you can use both research and brainstorming techniques to help you discover your structure. Furthermore, remember that some of your rules may be policy-based rules, and that those policy-based rules can help you to structure your argument. Once you have identified the issues, rules, and policies that are relevant to your argument, you can create a working outline.