Trial Advocacy as Legal Reasoning–And Legal Realism


Courts usually have as much interpretive leeway to construe facts asthey do legal rules. It is well recognized that courts can characterize facts in radically different ways to make one rule application rather than another seem appropriate or unavoidable. Interpretation of either facts or law can change the case outcome, and both processes are laden with subjective judgments. Moreover, these two interpretive processes are interdependent. How we construe facts will affect the meaning we give to rules–especially broad standards–and the normative content inherent in applying the language of rules will influence the facts we look for and find.

Scholars and practitioners know more about the complexity and importance of factual interpretation than has traditionally been reflected in law school curricula. Fact development has tremendous utility in practice. It is what many lawyers spend much of their time doing, and it can make orbreak a case as quickly as a rule interpretation. It is also an analytically complex project that implicates many of the same problems of social contingency and purposive construction that rule interpretation does. In light of this, it is somewhat odd that law schools have traditionally given much more attention to legal analysis than factual analysis. This has gradually changed in recent years, as schools have developed courses in pre-trial litigation and fact investigation, and have implemented legal process courses of broader scope.

To be sure, the traditional case method has always included some training in the purposive manipulation of fact descriptions to support a particular rule application, especially in relation to appellate cases. However, the purposive description of facts given in appellate cases is only a small part of the task of factual analysis and argument. Many texts used in trial and pre-trial litigation courses focus more on the techniques of gathering and presenting evidence than on conceptual strategies for building a morass of facts into persuasive arguments.

Albert Moore, Paul Bergman and David Binder’s new teaching text, Trial Advocacy: Inferences, Arguments and Trial Techniques is a substantial contribution not only to the pedagogical literature of trial advocacy, but also to the teaching of legal reasoning, broadly defined. As I argue below, the conceptual approach Moore, Bergman and Binder (MB&B) offer fortrial advocacy could serve an important role in the law school curriculum. First, their text serves to clarify the similarities and interdependence of fact analysis and legal rule analysis. Second, their approach facilitates a critical, anti-formalist understanding of law in a way that could empower new advocates to serve their clients and causes more effectively. MB&B’s close study of the advocacy and fact finding process will make legal realists out of most law students, and that realism will make them better lawyers.

Suggested Reading

Culture provides a foundation for the way we experience the world.[1] Rooted in traits such as ethnicity, race, religion, and gender identity, culture influences people’s values, behaviors, and beliefs.[2] Scholars have described culture as something akin to “the air we