Wednesday, July 17, 2013


Why, how now, count! wherefore are you sad?

Much Ado About Nothing, II.1

This post is about counting, or, more specifically, about the process of ascribing a numbered sequence to something, more formally known as “enumeration.” In legal writing, when we have multiple arguments to make, we enumerate to give a reader a roadmap and to help keep them focused along the way.  For instance, we might set up an argument in a brief as follows: “Newco’s reliance on X statute is unavailing for at least three reasons. First, the statute does not say what Newco claims it does. Second, even if the statute could be interpreted as Newco suggests, the result would thwart the intent of the legislature that passed it. Third, the statute only applies on Tuesdays.” After that enumeration, the reader will then expect to see three paragraphs or three sections each of which is devoted to fleshing out each of those arguments in turn—in the same sequence in which they were announced.
Hammering out the precise contorts of a legal argument often takes time. You first have to get a grip on the governing law and the relevant facts to see what issues are even implicated in a particular fight. Once you understand the analytical process that the decision-maker would likely follow in resolving the fight, you can then plan an organizational structure that will harmonize with that analytical process and, hopefully, more easily guide the decision-maker to make a decision that furthers your client’s interest.

Enumerating at the outset of an oral argument is also really helpful: “May it please the Court. My name is Ms. Lawyer, and I represent Oldco. The trial court’s decision to grant Newco summary judgment under Statute X was wrong as a matter of law for three distinct reasons. First, . . .” With an oral argument, though, a person has to enumerate issues in even more bite-sized chunks than in a legal brief. Because the brain—even the capacious brains of learned, well-prepared jurists—can only take in so much information through the ear.

Not only is it hard to follow convoluted arguments that are presented orally, it is hard to make them in a way that accounts for how hard they are to follow. So a person might think that an easy solution is to take a moment before responding to some judge’s tough question and map out what will follow by offering an enumerated list. Moreover, this tactic can sound very impressive, suggesting to the inquisitor that the lawyer who is being interrogated really knows his stuff. I think this is why debaters are taught this trick:

Q:         Why do you think it would be good public policy to adopt the statutory construction for which you are advocating? Won’t it mean that more people are denied access to public facilities than with the alternative approach?

A:         Your Honor, Oldco has three points in response. First, . . .

The fact that the lawyer was armed with not one, but three, points in response to the question suggests that the question was anticipated. This in turn suggests that the question is a worthy one, one that needed to be asked and answered. Which in turn suggests that the lawyer respects the process, he cared enough to prepare so as to ensure that the exercise of airing matters out in open court would not waste anyone’s precious time.

 And since all of these bi-products of enumeration are good things, one might think that a person should enumerate every chance he gets during an oral argument. A former student of mine—one whom I would describe as both unusually sweet and talented—once succumbed to this temptation during the heat of a moot court competition. His adrenaline turned him into an enumerating madman:

“Your Honor, Newco is wrong for four reasons—”

“Your Honor, that concern can be addressed with at least five alternatives—”

“Your Honor, six factors weigh in favor of granting Oldco relief—”

“Your Honor, Oldco has seventeen points in rebuttal—”

 But we all know how too much of a good thing can be—

—fodder for great comedy!

Or at least Shakespeare knew that. Indeed, WS had the very insight about enumeration described above a few centuries before I did, and he put it to use in Much Ado About Nothing. Here’s Officer Dogberry, who is charged with organizing the neighborhood watch, after he has just helped apprehend some suspicious characters and dragged them before the Prince, Don Pedro:

Officers, what offence have these men done?

Marry, sir, they have committed false report; moreover, they have spoken untruths; secondarily, they are slanders; sixth and lastly, they have belied a lady; thirdly, they have verified unjust things; and, to conclude, they are lying knaves.

By trying to enumerate on the fly while the brain is overheated—like during an oral argument—you can easily lose your way and, like Dogberry, lose count. So, sixth and lastly, don’t let enumeration take you down for the count.  

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