Saturday, March 3, 2012

Arguing in the Alternative

When you go to law school, you learn to "think like a lawyer." But what does that mean?

It means you can spot a lawsuit wherever you go. When you walk through a parking lot of a grocery store, and you see a large pothole in the pavement, you think, "oh, that's a tort lawsuit waiting to happen." Someone could easily fall if they were to accidentally step into the pothole. Is the injury foreseeable? Yes. Is the grocery store responsible for maintaining a safe parking lot? Most likely yes.

But wait. There is another side to the story. What would the other side say? 

I was recently editing a legal memo for my sister for her paralegal class, and recommended that at the end of the memo, she add a brief paragraph to "argue the alternative". When I was in law school, my torts professor took great pride in getting us to think like a lawyer. Part of that process is learning to argue in the alternative. In other words, what would the opposing side say? What would they argue in response to your case?

For example, the hypothetical scenario from my sister's legal memo was about a guy who went to a bar and got drunk. He left the bar drunk and got into a terrible car accident. The issue was whether the bar was responsible for the damages caused by the drunken man's behavior. My sister argued the bar was indeed liable and cited several cases with similar circumstances in which the court found the bar responsible.

However, what would the other side argue? Perhaps they would say the guy was drunk before he got to the bar. Maybe they would say that nobody saw him leave the bar drunk, so the injury was not foreseeable. There is always another side...and another lawyer to argue it.

What does all of this mean for me now that I am not a lawyer? I can't enjoy myself when I walk across a parking lot.

Gina :)

1 comment:

  1. Great post Gina! Congratulations on your new blog. Looks like you may have an attorney in the family after all.