1/2/2024

LEGAL REASONING
and
LEGAL METHODOLOGIES

Assoc. Prof. Dr. Nguyen Thi Phuong Hoa

Marking
⚫Participation: 50%
✓ Contributive answers

✓ Valuable questions

✓ Group presentation

✓ Special award

⚫Final exam: 50%

✓ True/false statements

✓ Analysis questions (doctrines/cases)

CONTENT:

1. INTRODUCTION TO LEGAL
REASONING

2. READING TEXTS ABOUT LAW AND

TEXTS OF THE LAW

3. LEGAL ARGUMENT

4. MEMORANDA AND BRIEFS: BUILDING

A COMPLETE DOCUMENT

5. ORAL ARGUMENT

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CHAPTER 1

INTRODUCTION TO LEGAL
REASONING

I. THE STUDY OF LEGAL

REASONING

II. THE ART OF LEGAL REASONING

III. EFFECTIVE LEGAL WRITING

IV. PARAGRAPHING

1. CONCEPT
What is “legal
reasoning“?

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1. CONCEPT
Broad sense:

“The psychological
processes undergone by
judges in reaching
decisions in the cases
before them”.

Why “judges”?

Psychological processes
comprised of:
⚫Ideas

⚫Beliefs

⚫Conjectures

⚫Hunches

⚫Feelings

⚫Emotions

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Narrow sense:

“The arguments that

judge gives, frequently
in written form, in
support of the decisions
they render”.

Arguments consist of:

⚫Reasons for the decisions

⚫Justifications for the decisions

2. Purposes of legal reasoning

study
▪ The study of legal reasoning in
the broad sense = the study of
judicial psychology and
biography →
▪ to know judges and their psychology

▪ to understand what impacts judges’

decisions

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▪ The study of legal reasoning in the

narrow sense = an inquiry into the “logic”
of judicial decision making:

✓ kinds of arguments judges give

✓ the relationship between the reasons

and the decisions, the adequacy of
these reasons as support for the
decisions

✓ Applying this knowledge in one’s

career

3. Skills required for legal

reasoning study

❖ Skill: an ability to do an activity or

job well, especially because you
have practised it

Skills required for legal reasoning study

❖ Critical thinking skills

❖ General and specific language skills

❖ Intellectual and technical skills

❖ Argument construction

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3.1 Critical thinking skills

⚫ Essential skills

What is thinking?

Mental activity that helps formulate/

solve a problem, make decision/
fulfill a desire to understand.
Critical thinking is a high-grade
activity of thinking.
A set of skills and attitudes that are
deployed logically and selectively to
evaluate arguments

⚫ The ability to be:

– Curious (being interested
in learning)

– Flexible (being able to

adopt easily to different
situation)

– Sceptical (questioning that

something is true and
useful)

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Excercising judgements shall be based

upon careful:

⚫ Observation of the issues relevant

⚫ Investigation to the matter to which
a judgement is to be
⚫ Consideration made

Critical thinking skills

include:
⚫ Reasoning logically

⚫ The ability to locate underlying

assumptions (searching for hidden
assumptions; justifying your own
assumptions; judging the rationality of
those assumptions; testing the accuracy of
those assumptions).

⚫ Analystic and argument skills.

Tips for developing critical

thinking skills?

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3.2 General and specific

language skills
⚫Grammar, spelling, vocabulary,
punctuation

⚫Appreciation of the influence and

power of language.

Differences between
general and special
language?

3.3 Intellectual and

technical skills
⚫ How to locate primary and secondary
sources of materials
⚫ How to read texts of the law and the
texts about law
⚫ How to write (using references,
summaries, notes)

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Primary source
Direct evidences or original sources of information
created at the time the event occurred

Information which was recorded

first-hand soon after the event occurred.
accounts of
event

data collected
for scientific
studies
historical
documents

Primary Source
Nelson Mandela wrote his
autobiography about events
in his life called “Long Walk
to Freedom: The
Autobiography of Nelson
Mandela”. This is a primary
document because he wrote
his first hand experiences.

Secondary source

General In legal
meaning profession
▪ Derived from
primary source
▪ written about provide
primary sources summaries and
▪ analyze, interpret, interpretations of
and discuss the law and facts
information about
the primary source.
To evaluate if the source is primary or secondary →
Check the context and purpose of its use

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Why should we use primary

sources?
⚫To explain how major events are
related to each other in time.
⚫To think critically and distinguish
between facts and opinions.
⚫To develop your own conclusions
and analyze how historical events
affect relevant parties.

Why should we use secondary

sources?
⚫To get expert opinions in order to
evaluate what really happened.
⚫To gain insight by examining the
same event from different
perspectives.
⚫To form your own opinion.
⚫To save time by reading
information collected from a
number of different sources.

COMPARISON
Primary source Secondary source

▪ Created at the time of an ▪ Created after event;

event, or very soon after. sometimes a long time
after something
happened.
▪ Created by someone who
saw or heard an event ▪ Expresses an opinion or
themselves. an argument about a past
event.
▪ Often uses primary
sources as examples.

To evaluate if the source is primary or secondary →

Check the context and purpose of its use

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Strength Weakness
Primary ✓High accuracy ✓ Time consuming
sources ✓ Hard to find

Secondary ✓ Ease of access ✓ Quality of research

sources
✓ Low cost to acquire ✓ Not specific to your
needs
✓ Clarification of research
question ✓ Incomplete
information
✓ May answer your own
research question ✓ Not timely

Reading Sources
Ask these basic questions :
– Who wrote this?
– What does it say?
– When was it written?
– Where was it written?
– Why was it written?

Summing up
It is important to determine the type
of information you are looking at.
– Primary sources are original sources
of information
– Secondary sources summarize,
analyze, or critique primary sources
– Both primary and secondary sources
can be good sources of information,
but you need to critically evaluate
them.

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In legal research, legal reasoning

⚫ Primary sources = law generated by a
governmental body or cases.

⚫ Secondary sources: other resources

which may be written by lawyers or
judges or other legal professionals
which comment on the law, categorize
the law or otherwise interpret the
primary sources.

In Legal Reasoning
⚫ Primary sources can be
either mandatory (binding)
or persuasive.
⚫ Secondary sources are
always persuasive
authority.
⚫ The researcher is always
looking for primary
sources which are
mandatory.

Some Examples

Primary or
secondary source?

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3.4 Argument construction

⚫Construction
⚫Evaluation
⚫Interpretation
⚫Deconstruction

I. THE STUDY OF LEGAL

REASONING

II. THE ART OF LEGAL REASONING

1. The language as a professional tool

2. Predictive writing and persuasive
writing
3. Planning, rewriting, and work habits

1. The language as a professional tool

⚫The role of language in general

⚫The role of language in legal
profession

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▪ a means of communication

The thoughts are explained and known through the

language

The role of language in legal

profession

Language: professional tool in

legal profession

The role of language in legal

profession

If your reader’s/listener’s attention is

drawn to the obscurities and other
faults in your writing/presentation,
you and your client will suffer for
several reasons.

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First, the typical reader begins to

resist and may not finish reading
because lawyers and judges are
busy people who do not have time
wade through difficult writing.

Second, the reader is tempted to

consider you unreliable/
unprofessional because mediocre
use of the language implies general
mediocrity as a lawyer.

Third, the busy reader may

misunderstand what you are trying to
say. Legal writing should give the
viewer a quick and clear view, without
distractions, of the idea behind it.

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Characteristics of legal language

⚫ ordinary words with specialized

meaning (law suit)

⚫ Latin words and phrases (mens rea –

guilty mind, actus reus - conduct)

⚫ Norman French (per se)

Characteristics of legal language

⚫ Claims that words can be used with

precision

⚫ Ritualized word forms (ex: the truth,

the whole truth and nothing but the
truth)

⚫ Use of words with flexible meanings

(reasonable)

Question:

The role of language to lawyers?

→ Viewing it in various aspects

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2. Predictive writing and persuasive writing

● Predictive writing:

two purposes

To advise clients To plan litigation

The legal memorandum

⚫ The most common type of predictive

legal analysis

⚫ It may include the client letter or legal

opinion.

Functions of predictive writing:

⚫ predicts the outcome of a legal question by

analyzing the authorities governing the
question and the relevant facts that gave rise
to the legal question

⚫ explains and applies the authorities in

predicting an outcome, and ends with advice
and recommendations

⚫ serves as record of the research done for a

given legal question

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Persuasive writing:

● the most rhetorically stylized

● framed as an argument

● argues for one approach to

resolving the legal matter and
does not present a neutral
analysis

Functions of persuasive writing

▪ to persuade a deciding authority to
favorably decide the dispute for the
author's client

usually submitted to judges (but also to

mediators, arbitrators, and others)

▪ to persuade the dispute's opposing party.

3. Planning, rewriting, and work habits

⚫ Well organized

⚫ Complete

⚫ Clear

⚫ Concise

⚫ Forceful

⚫ Accurate and precise…

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Question:

Which work habits are useful to

legal profession and how to
build them up?
Which work habits should be
avoided in legal profession and
how to cure them?

Good work habits

⚫Comprehensive and critical views
⚫Well- structured
⚫Concentrating (not to be
distracting)
⚫Language: exact, concise
⚫Style: coherent, cohesive
⚫Argument: logic
⚫evidence, proof

I. THE STUDY OF LEGAL

REASONING

II. THE ART OF LEGAL REASONING

III. EFFECTIVE LEGAL WRITING

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EFFECTIVE LEGAL WRITING

1. Clarity and vividness

2. Conciseness
3. Forcefullness
4. Punctuation and other rules of
grammar

1. Clarity and vividness

⚫ Find the “right” word
⚫ Straightforward, avoid the word that
blurs meaning.
For example: to describe what
happened.

⚫Precise (exact and careful, avoid

insecurity in convoluted
construction)
Figure out exactly what should be
said and then say it precisely (be
confident of writing and reduce fear).

The insecure writer who is not sure

what to say may try to hide that
insecurity in convoluted
constructions.

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The insecure writer who is not sure

what to say may try to hide that
insecurity by writing:
The above captioned appeal is
maintained by the defendant as a
direct result of…

Rather than:

The defendant appeals because …

To understand the importance of clarity in

law, consider two things:

⚫ Prove everything you say

⚫ No matter how important the issue, your

reader will be able to spare only a
limited amount of time to ponder what
you write.

2. Conciseness
important in legal writing for reasons:

⚫ Concise writing is by nature clear and

short;

⚫ The typical readers of legal reasoning

have no time to spare, therefore, they
will either resent inflated verbiage or

will simply refuse to read it.

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For example, compare two versions of

the same analysis:

When the parties

It is important to
agreed to the sale,
note that, at the
neither knew the
time when the
cow was pregnant.
parties entered into
the agreement of
purchase and sale,
neither of them had
knowledge of the
cow’s pregnant
condition.

Because of the fact The seller had

that the cow, previous assumed that the cow
to the contract, had was infertile because
not become pregnant, she had not become
despite planned and pregnant when the
observed exposure to seller tried to breed
bulls whose her with known stud
reproductive bulls.
capacities had been
demonstrated through
past experience, the
seller had made the
assumption that the
cow would not be able
to produce offspring.

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Due to the fact that the

Because the seller had
seller had made a
told the buyer about the
statement to the buyer
cow’s history, the buyer
describing the cow’s
did not investigate further.
opportunities to
reproduce and the failures
thereof, there would have
been, in the buyer’s
thinking, no purpose to
any further investigation
or inspection he might
have considered making.

For these reasons, the Thus, the contract did not

contract did not include a provide for an increase in
provision for an upward the purchase price if the
modification in the cow should turn out to be
payments to be made by fertile.
the buyer to the seller in
the event that the cow
should later prove to be
capable of reproduction.

How did the verbose rough

draft on the left become the
concise, finished product on
the right ?

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First, some sentences were

rewritten:
⚫ A person or a thing did something

⚫ Carefully chosen nouns and verbs.

⚫ Many modifiers became unnecessary

because their meaning has been
incorporated into nouns and verbs (and
sometimes into more succinct
modifiers).

The cow’s pregnant

The cow was pregnant
condition

Despite planned and

observed exposure to bulls
whose reproductive He tried to breed her
capacities had been with known stud bulls.
demonstrated through past
experience.

There would have been, in

the buyer’s thinking, no
purpose to any further The buyer did not
investigation or investigate further.
inspection he might have
considered making.

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Second, words and phrases

were eliminated if they could not
justify themselves:

It is important to note Was deleted because the

that “importance” is
communicated by the
sentence’s placement
and, ironically, by the
rewritten version’s brevity
previous to the contract Was deleted because it is
communicated by the
context

Third, each word and phrase was

weighed to see if the same thing
could be said in fewer words:

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at the time when

entered into the agreed to the sale

agreement of
purchase and sale

neither of them neither

had knowledge of knew

Because of the fact that Because

had made the assumed

assumption

would not be able to was infertile

produce offspring

Due to the fact that Because

had made a statement to had told

describing the cow’s about the cow’s history

opportunities to
reproduce and the
failures thereof

For these reasons Thus

include a provision for provide for

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an upward modification an increase in the

in the payments to be purchase price
made by the buyer to
the seller

in the event that if

the cow should later the cow should turn out

prove to be capable of to be fertile
reproduction

3. Forcefulness

⚫ Should the government regulate on

early marriage, ex. 18 for males and 18
for females?

Agree Disagree

M. Human rights of every person (right A. Early marriage negatively influences

to family, discrimination) physical and metal health of young
couples

N. Saving living costs as a couple B. Early marriage can cause economic

burden on young couples (financial
difficulties)

K. One way to protect young girls as C. Not having enough

they are protected by their husbands experience/conditions to grow up their
(prevention from sexual assaults) children
High rate of divorce → social burden
High rate of abortion
L. Happier couple life as young people D. Negatively affects on the education of
are easier in adapting to each other in young girls because of the role of a
the family life mother/a wife
Well-planning of their own life, the sense
of family responsibility

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Should the government regulated early marriage?

Agree Disagree
1. Suicide epidemic caused by social A. Pregnancy and uncontrolled birth →
isolation, marriage will be helpful to solve the cannot educate children
problem
2. Early settlement helps them to get stable B. Do not have time to develop their own
development in their career career

In the couple, they can discuss and develop

their career together
3. Increase in the number of elderly people, C. Insufficient finance
early marriage and giving birth will help to
develop new generations
4. Early marriage helps us to realize our D. Giving births/ pregnancy can lead to
responsibilities towards family and children. physical health problems.
It gives us responsibilities and so we are
more mature in our thinking
5. Money saving as the couple or the whole
family can share using things

6. Mental supports between couples will help

them in their personal as well as professional
life

How should you structure your

arguments and why?

3. Forcefulness

⚫ Forceful writing leads the reader

through ideas by specifying their
relationships with one another and by
identifying the ideas that are most
important or completing.

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Relationships between ideas can

be made clear through transitional
words and phrases, and through
demonstrative sentence structure.

accordingly in fact
additionally (in order) to
although in spite of
analogously in even that
as a result instead
because moreover
but nevertheless
consequently not only …., but also

⚫ Some transitional words and phrases

are stronger than others.

⚫ Be careful to select those that

accurately represent the relationship at
hand and that claim neither too little nor
too much.

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For example: demonstrative sentence

structure – the other tool for showing
logical relationships – includes, among
other things, the following:

The amended court rule

provides for such sanctions,
which eliminates the need to
rely on any inherent powers
Subordinate sentence
the court might or might not
elements showing
have to punish attorneys
affirmative relationships
whose vexatious conduct
multiplies the court’s work.

Although the attorneys here

argues that he made these
motions only after a
thorough review of this
Subordinate sentence
court’s precedents, he has
elements showing
not been able to cite a single
negative relationships
decision in support of his
position.

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The conduct of this attorney

is at least as egregious as
Joinder independent that of other attorneys who
sentence elements to have been so punished: not
emphasize logical only has he served and filed
relationships a frivolous pleading, but he
has made several equally
frivolous motions.

⚫ Forcefulness in legal writing is to

identify the ideas that are most
important or compelling, and there
are several ways of getting that
across.

An emphasized idea can be placed at the

beginning of a sentence, paragraph, or
passage, where it will be most quickly
noticed. Or:

A series of sentences can be arranged so

that the shortest and simplest of them
conveys the emphasized idea.

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Example:

This attorney served and filed a pleading alleging

extremely unlikely facts without making any factual
investigation and under circumstances indicating that
his clients’ only motive for litigation was harassment.
He made numerous frivolous motions, including one
for a preliminary injunction where his clients were in no
way threatened with harm. He has now brought an
appeal without any basis in statute or precedent, and
he has submitted a record and brief not in compliance
with the court’s rules. He has thoroughly disregarded
the professional obligations of an attorney.

4. Punctuation and other rules of grammar

See: Neumann, Jr., Legal Reasoning and

Legal Writing, (Little, Brown and Company,
1990) 387 – 398.

I. THE STUDY OF LEGAL

REASONING

II. THE ART OF LEGAL REASONING

III. EFFECTIVE LEGAL WRITING

STYLE

IV. PARAGRAPHING

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Why should we divide our

writing into paragraphs?

What criteria for dividing our

writing into paragraphs?

1. Two goals of paragraphing

⚫break your material up into

digestible chunks.
⚫to help you discipline yourself to
confront and develop each theme
inherent in the material.

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If you can summarize your paper in one

sentence, you’re more likely to have a
tightly-constructed, concise, and
readable document.

Example:
⚫This document examines whether
customary law should be more
effectively recognized in Vietnam.
⚫This document looks at arguments
in favour of and against early
marriage and the governing law.

2. Thesis sentences, topic sentences,

and transition sentences

2.1 Thesis sentence

⚫ a sentence (or two) that states what you are

going to do in your document as a whole.

⚫ a kind of a signpost – something that tells you

where to go - or a map that shows the reader
what direction your paragraphs will take.

⚫ Normally comes at the end of the introduction.

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2.2 Topic sentence

A topic sentence is oftenly the first

sentence in a paragraph.

The topic sentence should identify

the main idea and point of the
paragraph.

⚫ The supporting details in the

paragraph will develop or explain
the topic sentence.

⚫ The topic sentence should not be too

general or too specific.

When considering the options, look for

a topic sentence that is general enough
to show the paragraph’s main idea
instead of just one of its details.

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⚫ A good topic sentence is concise and

emphatic. It is no longer than the idea
requires, and it stresses the important
word or phrase.

Topic sentences should be:

⚫ Short
⚫ Simple
⚫ Clear
⚫ Give a strong idea

Example:
There are three reasons why Canada is one of
the best countries in the world. First, Canada
has an excellent health care system. All
Canadians have access to medical services at
a reasonable price. Second, Canada has a
high standard of education. Students are
taught by well-trained teachers and are
encouraged to continue studying at
university. Finally, Canada's cities are clean
and efficiently managed. Canadian cities have
many parks and lots of space for people to
live. As a result, Canada is a desirable place
to live.

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In Vietnam, land cannot be owned either by individuals or

by entities, whether they are Vietnamese or foreigners. The
Vietnamese Constitution explicitly provides that land is
owned by the entire people of Vietnam and that the State
administers the land for the people. Individuals,
households or entities, however, may become land users
(“land user”) and have land use rights (“LURs”) in
accordance with the Land Law and its implementing
regulations. Land use is very complex in Vietnam. The
considerations are social, historical and economic. Rights
differ depending, among other things, on how land is
received, the nature of the transferor, nature of the
transferee, etc. As you will see through out this paper,
there are also other variables.

In Vietnam, land cannot be owned either by individuals or

by entities, whether they are Vietnamese or foreigners. The
Vietnamese Constitution explicitly provides that land is
owned by the entire people of Vietnam and that the State
administers the land for the people.
Land use is very complex in Vietnam. Individuals,
households or entities may become land users (“land
user”) and have land use rights (“LURs”) under the Land
Law and regulations. Land use rights depend on different
factors, such as: how land is received, the nature of the
transferor, nature of the transferee and other variables.

2.3 Transition sentence

Transitions are the sentences or words

that allow readers to follow the flow of an
argument.

Transitions help you to achieve your

goals by establishing logical connections
between sentences, paragraphs, and
sections of your papers.

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- Transitions between sections

- Transitions between paragraphs

- Transitions within paragraphs

(See Kim Skorner in kimskorner4teachertalk.com for
examples)

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