One of the most popular professions is law. Perhaps the appeal is that people love a good argument. However, many people are frustrated by the out comes of trials and feel that law is out of touch with society. The primary reason people feel aggrieved is that they don’t understand how argument is used in the professions. Unlike a family or friend dispute that involves history, emotion, familiarity and personal opinion the professions can not cater for all for these dynamics.
Argument is a fundamental skill at university and the essay is the instrument used to teach critical analysis. All disciplines at university must learn to peel away personal opinion, emotion and attachment and instead rely on research (evidence)for argument -most clearly seen in law.
In Australia there is a criminal and civil justice system. The criminal outcomes are determined by a jury or judge and beyond reasonable doubtis the test. A defence lawyer represents the (accused) and a prosecutor represents a (complainant). The test for civil outcomes is ‘probability’and cases are adjudicated by a judge. The plaintiff brings the claim and the respondent responds to the claim. Both systems use the same principles of argument. Let’s look at argument from the perspective of a criminal case.
Man (defendant) visits a criminal (defence) lawyer because he has been charged with shop lifting. Shop lifting is illegal therefore the laws of the state are defended by the prosecution.
- Both the prosecution and defence lawyers determine the facts of the case from their clients and police reports -the date, time, witnesses, actions, the items stolen, the value of the items etc. Verystrict legal parameters are set here -tangible evidence and the exact laws that were breached are the context and no new components can be introduced later.The scenario is the first part of an essay -question, introduction, context.
- Initially the defence and prosecution use references lists (in their heads) to explain to clients how their cases will be legally argued.
- In more complex cases both lawyers would examine other cases to strengthen their arguments -if you like more references.
- The burden of proof is on the prosecution. The prosecution must research every aspect of the alleged offence in order to remove any doubt from the jury’s or judges mind. The prosecution argues (paragraphs) only the issues pertinent to the case until the defence disagrees with a point made. Second part of essay argument and(evidence) references.
- The defence must know everything that the prosecution will put forward because if doubt is established by the prosecution the defence must remove itwith argument and evidence (in an essay references).
- The side that has argued most cohesively will be successful. The side that does not completely know what the other might argue will lose or affect sentencing.
- Obviously, if a law is broken then the accused will be still be convicted but the extent of the sentence is affected by the quality of argument delivered. An excellent defence -one that is well argued and researched-may have the sentence reduced significantly-conclusion.
The job of both the defence and prosecution originates from the essay. An excellent essay has answered the question, stayed within context has a coherent argument that acknowledges other researched arguments but offers a more plausible answer.Argument is very efficient and if either lawyer deviates from the issues they will harm their client.Indeed, there is no place for emotion, personal opinion or attitude in a State’s legal system or any profession
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