Let's discuss the
arguments that a pro se litigant, attorneys, and judges make during the course
of a legal matter before a court of law.
Pro se litigants
need to understand the concept of "argument" because this is usually
the intersection where the law and (JSHIT) hit
the fan.
Any presentation of
a basis in law and fact is meaningless without an understanding of the concept
of "argument."
When the layman
thinks of arguments, he or she usually resorts to the common thought of making
statements leading from a premise to a conclusion. To do this is what leads to
many pro se litigants failing to present their case properly. This is because
their presentation takes on the form of a "street level" argument and
it is lacking in a basis in law to support their facts.
The discourse
described above can be said to lack "legal reasoning." Hence, pro se litigants as well as lawyers,
and judges must be able to finish or complete this formula: Facts + Laws >
Legal Reasoning.
In chemistry a
chemist is able to show, by a formula, that the combination of: A + B > AB,
so too the pro se litigant must be able to show that their Facts + Laws >
Legal Reasoning, and thereby said presentation becomes persuasive.
Blacks Law
Dictionary's definition of the terms is not required to understand the two
terms of "argument" and "reason." The definition given by Merriam Webster's 11th Collegiate Dictionary for
the terms are as follows:
Argument- 2a:
a reason given in proof or rebuttal b: discourse intended to persuade 3b: a
coherent series of statements leading from a premise to a conclusion.
Reason- 1a:
a statement offered in explanation or justification b: a rational ground or
motive c: a sufficient ground of explanation or or logical defense: especially:
something (as a principle or law) that supports a conclusion or explains a fact
d: the thing that makes some fact intelligible: CAUSE.
Once more I drive
home the premise that to take a matter to court you must be armed with a basis
in fact and law. Understanding the
definitions above we can see why.
Starting with a set
of facts, the plaintiff or the defendant has to gather evidence to show that
said facts did or did not occur. Then
based upon the occurrence or non-occurrence
of some facts he or she must state what the law says if a set of facts
has or has not happened. Example: if one takes something that doe not belong to
him or her, or he has no legal right to take that thing a theft occurs. If he or she can prove that they did not take
or had a legal right to take the thing a theft has not occurred.
In the above if a
thing is proved to be taken and that the taker lacked a legal right to take the
thing the law says that a theft has occurred. Here is where one must get their
basis in law correct by referring to the statutes of the jurisdiction that they
are in. If I may cross the line and become "long-winded," I will
support this and not leave you in the dark as follows.
Using the example
above, if one was in the State of New Jersey, the law says:
New Jersey Criminal Code 2C:20-3,
Theft by Unlawful Taking or Disposition
- Movable property. A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof.
- Immovable property. A person is guilty of theft if he unlawfully transfers any interest in immovable property of another with purpose to benefit himself or another not entitled thereto.
Saving for another
post at a later date we will not tread upon the "elements" of an
offense here, but I have underlined them above for clarity of this topic. To be prosecuted for a theft of movable
property in the State of New Jersey a prosecutor must show that there was (1)
movable or immovable property taken, (2) the taking was unlawful, (3) the
alleged taker exercised unlawful control over the property, (4) the property
was that of another (not his), and that (5) said taking or exercise of unlawful
control was done with a purpose to deprive the other. Not so simple now huh?
But stay with me and
I can wrap this up and take you back to the argument and reasoning, which is
the basis of this post.
Maybe this example
can hold your attention, expound on the subject matter, and wrap this post up
all at the same time. Mr. and Mrs. Boozer jointly own a house at 101 Main St.
Anywhere, USA, this couple also have a rare
$3,000 bottle of champagne tucked
away. Mr. Boozer's old friend, that he
hasn't seen in twenty years stops by and he (Mr. Boozer) decides to crack open that bottle with his friend to
celebrate the reunion. They get toasted.
Meanwhile Mrs.
Boozer, returns home from running errands and see's the empty bottle on the
coffee table, ole dude, whom she can't stand, and her husband knocked out sleep
on the couch. She demands that the old friend [FN] get out of her house, and a
huge fight breaks out between this couple and she calls the cops alleging that
the husband stole a $3,000 dollar bottle of champagne that she paid half for
and she want's that ass arrested. What will the arriving police do?
No they shouldn't
ask the couple if they have another bottle so that they can taste the evidence
to see what $3,000 champagne taste like, and warrant's an arrest for depriving
Ms. Booze the benefit of the empty bottle. They will gather the facts and tell
her to take the matter to court, where the judge of jury will weigh the facts,
because she has admitted that she paid half, and the trier of the facts will
want to see proof of payment, hear testimony from both sides as to a binding
contract to only partake of the bottle at the same time, and further see if Mr.
Boozer deceived the Misses in any way.
Why could this be
one scenario to the above? Lets say they
were in NJ, where comment to 2C:20-2[5] Claim of right; theft from spouse says:
"As stated in comments to 2C:20-1, to
constitute theft, the property taken must be the "property of
another." See 2C:20-1h and State v. Mejia, 141 N.J. 475, 495 (1995). If the defendant, in fact, owns the particular
property, no theft occurs, and where robbery is the issue, no robbery occurs
either. Id. This, however, is so because
of a failure of proof. The state has not
proven that the defendant took the "property of another." Where the property is "property of
another" as defined, however the defendant, sometimes may assert a
claim-of-right defense, requiring that the defendant honestly believe in a
right to the property."
Lastly to wrap this
up, fact, the police upon arriving and hearing the fact could conclude that Mr.
Boozer had a "claim-of-right" to the champagne, and although they
couldn't get a taste they still could not arrest him based upon applying the law
to the facts.
When and if they got
their day in court the trier of the fact upon concluding that Mr. Boozer
honestly believed that he had a right to crack the champagne with his buddy,
regardless of the wife's disdain for his old friend, the case is resolved in
his favor and he should recover all cost's of the suit. Now if they ran a tape
line down the middle of the house, split the kitchen, refrigerator, and each
laid claim to their favorite child is another matter for another day in another
court.
When and if the
above day in court came, each would again have to show that based upon the
Facts + Laws he or she has yielded a legal reasoning that the court finds
persuasive to grant the relief sought. So, pro se litigants out there remember
it thus, to get your claim you will have to combine your facts with an
application of law to yield your legal reasoning for the granting of what you
seek. Whew!
Thank you, and I
hope this sets you on the right path.
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