One common mistake of new law students is conclusory argumentation, as discussed in this post on avoiding “Monty Python” argumentation. Another common mistake is incomplete analysis. An essay answer might include analysis that scratches the surface but doesn’t explore deeper. But it’s crucial to consider the strengths and weaknesses of any argument, and to explore valid counter-arguments.
Failure to consider and address valid counter-arguments may leave an essay answer on thin ice, as illustrated by Bruce Wayne in the movie Batman Begins. Below is a video showing Wayne (pre-Batman) being trained in combat by Henri Ducard, who later turns out to be the villain Ra’s al Ghul. Ducard/Ghul reminds Wayne to “always mind your surroundings.” But Wayne, hoping for a quick and easy win, ignores the fragile ice below his feet, leading to an equally quick and humbling defeat. At about 1:00 into the video the battle reaches its climax:
Ducard/Ghul: You haven’t beaten me. You’ve sacrificed sure footing for a killing stroke.
Anticipating and raising counter-arguments isn’t just law-school stuff: it’s what lawyers do every day. If lawyers don’t anticipate counter-arguments, they’ll be blind-sided when their adversary — or worse, the judge — raises them. Thus, a good lawyer has to be his own “best frenemy,” anticipating the arguments against his position. This will enable the lawyer to take a number of crucial tactics, such as: 1) strengthening arguments to avoid leaving room for counter-attack; 2) rebutting counter-arguments after they are made; 3) preemptively rebutting counter-arguments before they are made; and 4) omitting arguments that turn out to have fatal defects.
Being mindful of one’s surroundings isn’t just limited to the courtroom. A tennis player must consider the position of her opponent before returning the ball. A chess player must anticipate his opponent’s range of counter-moves. And law students — as well as superheroes — must do the same.
Advice part I (life and stress) here.
Advice part II (studying and attitudes) here.
Advice part III (back up your data) here.
Advice part IV (essay exams) here.
Advice part V (conclusory argumentation) here.
Advice part VI (incomplete argumentation) here.