UNIVERSITY OF THE CORDILLERAS

COLLEGE OF LAW

Legal English I
PERSUASIVENESS
If you wish to win a man over to your ideas, first make him your friend
- Abraham Lincoln

I.

PERSUASION

Persuasion is a process where people are guided towards the adoption of an idea or course of
action. In legal writing, a persuasive document attempts to influence the deciding authority to
favorably decide the case in favor of ones client. The deciding authority may be the judge, arbiter,
commissioner, hearing officer, mediator, or the other party to the dispute.

II. MODES OF LEGAL REASONING

Reasoning is the process of drawing conclusions from facts or evidence. To reach the desired
conclusion, arguments and proofs may be used.
There are four (4) modes of legal reasoning: a) rule-based reasoning; b) analogical reasoning (and
the counter-analogical reasoning); c) policy-based reasoning; and d) narrative reasoning.

A. RULE-BASED REASONING
In rule-based reasoning, the conclusion is reached by analyzing and applying the law, rule, or legal
principle.
The law says a contract is annullable where one of the parties is incapable of
giving consent to a contract. Mario was sixteen when he signed the contract.
Therefore, Mario should not be bound by the contract because he signed it
when he has a minor who is still incapable of giving consent under the law.

B. ANALOGICAL REASONING
(AND, BY EXTENSION, THE COUNTER-ANALOGICAL REASONING)
There are three (3) possible types of analogical argument:
1. Arguing from precedent
This type of analogical argument happens when the conclusion is reached by showing
similarities between the case decided by the Supreme Court and the case of the client. This is
usually achieved by invoking the doctrine of stare decisis.
The lawyer reasons by showing that there is a direct factual similarity between the case
decided upon by the high court and his clients case. If the Supreme Court decided the case
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this way, then the clients case must be decided this way due to the similarities of facts. To put
it conversely, my clients case should be decided in this manner because after all, the
Supreme Court in a case of similar facts also decided in this manner.
In the case in question, Mario was sixteen when he signed the contract in
2009. However, he lied about his age by misrepresenting himself to be
twenty. In a case of similar facts, Mercado v. Espiritu, the Supreme Court
declared the deed of sale valid and cannot be annulled although two of the
four parties were minors. Their misrepresentation about their age amounted
to estoppel. They cannot benefit from their bad faith.

2. Argument of same legal application

Analogical reasoning may also be used to show similarities that if the law applies to one area,
it may be understood to apply to other similar areas.
In a case that attempts to impose damages on the seller of real property for failing to disclose a
major defect of the property, the lawyer might argue that the law has imposed such duty on
sellers of personal property as well. He might argue that the rule for real and personal
properties is the same.
a. Mutatis Mutandis
Mutatis Mutandis is an example of argument using the same legal application. This
happens when one compares multiple situations having multiple variables where some
variables remain constant, while others are allowed to remain to be changed.
The injunction in the ten commandments thou shall not covet thy neighbors
wife will apply mutatis mutandis to thy neighbors husband as well.
Article 111 of the Law of the Sea states that the right of hot pursuit shall apply
mutatis mutandis to violations in the exclusive economic zone or on the
continental shelf, including safety zones around continental shelf installations,
of the laws and regulations of the coastal State applicable in accordance with
this Convention to the exclusive zone or the continental shelf, including such
safety zones.

3. Argument using common sense analogy

Analogical arguments may be used by starting with something that everyone accepts.
A person might argue that death penalty must be restored because the body
of society is just like the body of a person. If a man has severe toothache, the
logical way is to extract the tooth. A heinous criminal is just like the bad tooth.

COUNTER-ANALOGICAL REASONING

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Counter-analogical reasoning is the opposite of analogical reasoning. While the latter concludes
by pointing out the similarities, counter-analogical reasoning concludes by pointing out relevant
differences between the case and the clients facts. Counter-analogical reasoning is usually used
to debunk or destroy the other partys prior use of analogical reasoning by stating that the case
cited and the clients situation are actually different. Thus, no common conclusion can be inferred
from both situations.
In Mercado v. Espiritu, the minors representations misled the other party
since the minors had passed the age of puberty and truly looked like adults.
However, in the other case, the buyer cannot be misled even if Mario, the
seller, lied about his age because Mario is a baby-faced sixteen year old.
Further, Mario has neither passed the age of puberty nor looked like an adult.
Thus, there are no factual similarities in both cases.
In the tooth extraction case as an analogy why death sentence should be
imposed, the opposing party who is against death penalty might reason using
counter analogy by saying satirically that if my tooth aches, I may have it
pulled, such that if my head aches, I may have it cut. This is another way of
telling that there are not enough similarities between tooth extraction and
death penalty to warrant a conclusion.

C.

POLICY-BASED REASONING

Policy-based reasoning reaches a conclusion by connecting the facts of the case to the States
existing policy, i.e., what would be best for the society at large. Public policy is recognized or
established by the State in determining what acts are unlawful as these are deemed injurious to the
public good.
Thus, an agreement is against public policy if it is injurious to the interests of the public,
contravenes some established interest of society, violates some public statute, is against public
morals, tends to interfere with the public welfare or safety, is at war with the interests of society,
and is in conflict with the morals of the time.
Mario should not be bound by the contract. Young people whose minds and
morals are not yet fully formed should not suffer from the harmful
consequences of those acts which they themselves could not fully consent to.
He is not yet mature enough to consider the full consequences of his
decisions. He deserves to be protected, not punished.

D. NARRATIVE REASONING
Narrative reasoning reaches a conclusion by telling a story that shows the context, description, and
perspective that appeals to commonly-held ideas of justice, mercy, or fairness.
Mario should not be bound by the contract he signed because Joey, the cardealer for 25 years, pressured Mario, discouraged him from calling his parents
to ask for advice, and told him that another buyer was interested at the car at
the very moment. Joey said that he will give Mario a bonus of P5,000.00 on
top of Marios selling price if Mario will allow Joey to facilitate the sale of
Marios car to the buyer. That bonus was a secret between Mario and Joey.
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Clearly, there was undue influence on Mario and consequently affected the
consent he gave to Joey and the buyer. #

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