Chapter 6 – Add Arguments Based on Policy and Equity
Learning Outcomes
- Be able to explain the purpose of equity and policy arguments.
- Be able to
- Write equity arguments; and
- Write policy arguments.
Policy and Equity Arguments
The author’s approach for teaching policy and equity arguments is based on Michael R. Smith, Advanced Legal Writing, pp. 92-97 (Wolters Kluwer, 3rd ed. 2008).
Equity and policy arguments are appeals to the audience’s emotions, or values. Equity arguments are focused on a person and why they are or are not sympathetic. Policy arguments appeal to the public good rather than the parties in the litigation. Both bolster but do not take the place of rule-based reasoning. Instead, like reasoning by analogy, they support your application of rules to facts.
Equity Arguments
Equity arguments are fact based, and designed to appeal to values that will evoke sympathy towards your client or another player in the story (a positive equity argument) or hostility toward the opposing party or another player in the story (a negative equity argument). They are essentially a plea for fairness that probably won’t affect liability but could affect settlement negotiations or evaluations of jury appeal.
Equity arguments can be implied or express. Express equity arguments are in the argument section and are intended to bolster your rule application. For example, assume you represent the defendant driver of a car who is the daughter of her passenger killed in a motor vehicle accident. The mother’s estate sues the driver-daughter. The daughter moves for summary judgment, arguing that she faced an emergency and is thus not liable as a matter of law. While arguing that your client was faced with an emergency you could add “in a split second, a vehicle crossed over from another lane, leaving the driver with no time to maneuver around it. And just minutes after the collision, the driver was left racked with guilt when she realized her mother was dead.”
Implied equity arguments can be more effective. They are in the statement of facts, rather than the argument section. You make equity arguments in a statement of facts through strategic placement of facts, organization, and choice of words to emphasize good facts and minimize bad facts. For more on writing statements of fact see Chapter 10. You can make implied equity arguments through a compelling story in the statement of facts. The facts you emphasize to evoke favorable emotions need not be material to the legal issue. That the daughter-driver suffers tremendous guilt over her mother’s death is not relevant to her negligence, still, this fact could very well show up in her statement of facts.
In a criminal case, as the attorney for the defendant charged with embezzlement, you might point out that she used the money she allegedly embezzled to pay for her mother’s medical bills. This fact would not affect her culpability, but could affect her sentence by evoking the sentencing judge’s sympathy and would be well placed in a statement of facts. This approach is more subtle and more effective than are express arguments intended to evoke sympathy.
Policy Arguments
Policy arguments appeal to the public good rather than the parties in the litigation. They argue that an outcome would either benefit (positive policy argument) or harm the public (negative policy argument). Policy arguments can be based on pre-existing statements of policy by the judiciary in a published opinion or by the legislature in a statute. They can also be based solely on the precedential impact of your case.
1. Policy analysis/argument based on pre-existing statements
Some statutes begin with express statements about the underlying policy goals. And judges often include express statements about policy to support a rule or the outcome of a particular case.
For example, the New York State Legislature states at the beginning of the state’s Freedom of Information Law that its purpose is to shed light on government decision-making, which in turn both permits the electorate to make informed choices regarding governmental activities and facilitates exposure of waste, negligence, and abuse. See N.Y. Public Officers Law § 84.
If you represented the plaintiff in a lawsuit seeking the government to release a document under the statute you would include the legislative purpose in your rule explanation. Then you would apply the purpose to the facts of your case to argue that the outcome you advocate for would further the policy underlying law because it would expose government abuse. You would begin the application with a sentence that the outcome you advocate will further the policy underlying the statute or rule. You would then apply the policy using key terms that support the outcome you advocate.
Here’s an example:
Include in rule explanation: The purpose of NYS’s Freedom of Information Law is to shed light on government decision-making, which in turn both permits the electorate to make informed choices regarding governmental activities and facilitates exposure of waste, negligence, and abuse. See N.Y. Public Officers Law § 84.
Include in rule application: An order requiring the Sheriff to release a video depicting five guards pushing a handcuffed prisoner into a wall will serve the purpose of New York’s Freedom of Information Law because it will expose government abuse. The Sheriff denied a FOIL request to disclose the video, asserting it fell into the public safety exception. The Sheriff should release the video to the public because it would facilitate exposure of abuse by the Erie County Sheriff’s Office.
The organization of a legal argument with policy argument based on a pre-existing statement of policy:
C
R
- The element or rule at issue (“if a certain condition exists, then a certain legal condition results.”). Fn»
E
- Explain rule through its key terms.
- Explain policy underlying the rule as expressed by a legislature or a court.
- Rule illustrations (either parenthetically or in text).
A
- Apply the key phrases from the rule cluster.
- Apply policy or its key terms to argue your application is consistent with it.
- And add analogies to in text rule illustration cases (perhaps).
C
Sometimes policy statements made by judges or legislatures are lengthy. When that’s the case choose key terms from the statement that apply to your case, just as you choose key terms to explain a rule. See Chapter 1, how to explain a rule. Then apply those key terms to the facts of your case, just as you do when you apply key terms from a rule to the facts of your case.
Exercise 6-1
Instructions: Read the legislature’s policy underlying N.Y. Mental Hygiene Law sec. 81.01 and Carol’s narrative about Sally. Choose from the policy key terms relevant to Carol’s narrative. Then apply the key terms from the policy to the facts in Carol’s narrative to write:
1. a policy-based argument in support of Sally; and
2. a policy-based argument in support of Carol.
The legislature’s policy statement underlying Mental Hygiene Law sec. 81.01: “The legislature finds that it is best for persons with incapacities to make available to them the least restrictive form of intervention which assists them in meeting their needs but, at the same time, permits them to exercise the independence and self-determination of which they are capable. It is the purpose of this act to promote the public welfare by establishing a guardianship system which is appropriate to satisfy either personal or property management needs of an incapacitated person in a manner tailored to the individual needs of that person, which takes in account the personal wishes, preferences and desires of the person, and which affords the person the greatest amount of independence and self-determination and participation in all the decisions affecting such person’s life.” N.Y. Mental Hyg. Law sec. 81.01.
Carol’s narrative:
At age seventy-nine, Sally was living alone for the first time. She had lived for decades with her late husband, who sadly passed away after a long illness. I checked in on her daily. I have known Sally since I was three years of age as she and her late husband lived next door to my parents for thirty years. I think of her as my third grandmother.
Sally had always been meticulous about taking care of herself and her belongings. But within weeks of her husband’s death, she stopped bathing and paying her bills. Her house was filthy, she lived on marshmallow cookies she bought at the convenience store located next to her house, and she stopped taking her blood pressure medicine. I was pleased when she readily accepted my offer to take over paying her bills.
I started thinking that Sally was incapable of managing her personal and financial affairs. I tried to convince her to move into a senior citizen’s apartment complex, but she would not consider leaving the home she had shared with her husband. She explained away her strange behavior. She said that she thought life was too short to worry about cooking and cleaning and that she didn’t want to take her medicine because of the way it made her feel. That sounded reasonable enough, so I started to think that maybe I wanted Sally to move so that I would be relieved of the responsibility of looking after her.
I pleaded with her to take a shower and wash her hair, but she insisted that she wasn’t dirty. I was worried. But she was in no immediate danger.
About a week later, Sally slipped and fell when she was out walking, and by the next day, her arm was swollen to twice its size. When I insisted that she go with me to see a doctor she became angry. Eventually, I located a doctor who offered to go to Sally’s house. Once he arrived, Sally did not resist his care. While he was examining Sally, he discovered a tumor on her breast that had broken through her skin. “It must have been there at least a year,” he said. “She’ll die without surgery.”
Sally didn’t know what all the fuss was about, but she enjoyed the attention. She went to the hospital without protest. The doctor explained to her that she needed a mastectomy. He drew a picture for her and held her hand. He asked her if she wanted to go ahead with the operations and she nodded her head affirmatively.
The operation was successful and over the next week, as I sat by her side in the hospital, Sally began to slowly regain her strength. Nonetheless, at times, she seemed disoriented. When she wandered around the hospital corridors, she couldn’t find her way back to her room, and occasionally she couldn’t remember my name. I began to wonder what would happen if Sally returned to her house and continued to live alone.
When it was time for Sally to be discharged, the doctor explained that based on his observations, he didn’t think Sally was able to properly care for herself. He recommended that she be placed in a nursing home. In the midst of this discussion, Sally began yelling angrily at the doctor and me. “I can take care of myself! I have been doing things for myself all of these years and I will keep doing things for myself! You can’t tell me what to do.”
Sally wants to live with her younger brother Carl. He offered Sally a room in his two-bedroom home where he lives alone. Carl is a relatively healthy 70-year-old who still works part-time and drives a car. As stated in his affidavit, while he is arthritic, he believes he is both physically and mentally capable of supervising his older sister. He offered to “look after her.”
Carol initiated an article 81 petition to become Sally’s guardian. If she is successful and granted the authority to decide where Sally will live, she will arrange for Sally to live in the best nursing home she can find and will visit every other day to monitor her care. Sally and Carl oppose the petition. If they prevail, Sally will move into Carl’s apartment.
In the space provided below, apply the policy to the facts in Carol’s narrative and write a policy-based argument in support of Sally and one in support of Carol, then compare your answers against the sample answers provided.
2. Policy analysis/argument based solely on the precedential impact of your case
If there is no policy statement made by legal authority, you can make a policy argument based on the precedential impact of your case. Focus on the precedential impact of the case being decided and the values implicated by a decision. If you want to make this type of argument, make it clear and convincing. Lay out the potential precedential rule that a decision could establish; the consequences of the rule; the value implicated by the consequences, and an explanation of how the decision would lead to those consequences. You can strengthen your policy argument by citing to non-legal sources such as scientific articles.
The organization of a legal argument with policy argument with no pre-existing statement of policy
C
R
- The element or rule at issue.
E
- Explain rule through its key terms.
- Rule illustrations (either parenthetically or in text).
A
- Apply the key phrases from the rule cluster.
- And add analogies to in-text rule illustration cases.
- Apply policy to argue your application is consistent with it. You can cite non-legal sources such as scientific articles or statistics to support your argument.
Rebuttal
C
Here are two annotated policy arguments based on the precedential impact concerning the use of force by prison guards on prisoners:
1. A decision denying the defendant corrections officers’ summary judgment would establish a rule that officers may not use force even when faced with a noncompliant inmate. (Explanation)» Under such a rule the workplace for corrections officers would become more dangerous because inmates would feel at liberty to disregard orders. (Explanation)» Even under the current rule that permits officers to use reasonable force, officers put themselves at risk every day. In 2013, the most recent year the statistic is available x inmates inflicted serious injuries on xx officers. (Explanation)»
2. A decision granting the defendant guards’ summary judgment would establish a rule that officers may use force against defenseless prisoners. (Explanation)» Under such a rule prisoners could be subject to the malicious use of force by guards simply because the guards do not like them. (Explanation)» Even under the current rule that prohibits the malicious use of force prisoners are subject to the arbitrary use of force. In 2013, the most recent year the statistic is available x prisoners were seriously injured because of beatings inflicted by guards. (Explanation)»
Exercise 6-2
Question: Rearrange these sentences to make a policy argument based on the precedential impact concerning a case of childhood lead poisoning.
Now that you completed this chapter you should know how to add equity and policy-based reasoning to your argument.
