Avoiding Circular Logic in Argument Headers
Well-constructed argument headers are a brief-writer’s first opportunity to state a narrow thesis and encapsulate the proof to come. But a poorly planned point header or subheader can leave your reader running in circles. Make your point straightforward by avoiding circular reasoning. For novices, one of the most common iterations of this problem is to state that the client can satisfy the applicable legal test. More experienced legal writers often fall into a subtler form of the same trap, as shown in the “somewhat better” example here:
Poor example: The covenant not to compete contains a reasonable geographic area because Acme can prove it meets the standard for reasonableness.
Somewhat better: The covenant not to compete contains a reasonable geographic area because Acme can show its scope is not too large.
Good example: The covenant’s geographic scope is reasonable because it matches Jones’s sales region and contains 20% of Acme’s active client base.
The difference between the poor and better examples is a slight narrowing of the legal rule; “not too large” is a slightly more specific rendition of “reasonable,” but still basically the same idea. What makes the good example so much improved is that it incorporates two much narrower factors from the test along with the key facts that prove them.
The factors can be inferred from the facts. “Matches Jones’s sales region” indicates that the territory restricted to the employee must be commensurate with his or her former area of activity. “Contains 20% of Acme’s active client base” suggests that another factor is whether the restriction continues to protect a significant business interest.
Finally, the header manages to stay concise by narrowing the issue; it focuses not on whether the entire covenant is reasonable but on whether the geographic restriction is reasonable.
Accordingly, the takeaway is: don’t prove a rule with another rule; prove it with facts, and focus only on the narrow issue at hand.
Stadium Image: L. Willms (Own work) [CC-BY-SA-3.0], via Wikimedia Commons