A MASTER CLASS IN (ORAL) ARGUMENT I promised last week I would give a detailed summary of why I was over the top in my praise for Adv Steve Budlenders performance in the case of Steve Hofmeyr vs Chester Missing. Steve delivered oral argument which would have been excellent viewing, and learning opportunity, for law students. But also just for anyone (including competitive debaters) interested in improving their ability to reason well. I will try here to do some justice to his skillset. The magistrate, sadly, and wrongly in view, barred any recording of the court proceedings, so we just have my description of it Im afraid. Starting with the content: Budlender did two things well: a) He started off with excellent rebuttal - it really was, for the debaters here, a perfect illustration of how transferable debate skills are in professional life (he sounded like the perfect opening opposition speaker in a worlds finals). He told the court which parts of the arguments just delivered by racist Dan Roodt are not legally salient, and do not require the magistrate to adjudicate at all. He didnt dive into his own argument immediately. For example, he pointed out that since this was a case about harassment, Roodts arguments about defamation go beyond the scope of the legislation relied on to confirm the interim protection order granted against Conrad Koch. There were about three or four central lines of argument from Roodt which simply had nothing to do with the courts adjudication mandate in this instance, and Steve kicked for touch. Roodt was clearly caught off guard, because he was ready to do battle on a range of extraneous points such as interpretations of our history, the definition of racism, etc. Budlender denied him that wild goose chase by ring-fencing the legally salient issues for the magistrate. Roodt had no response. [ Rhetorically, Steve delivered these by saying, Your Worship, this case is NOT about .... a)..... NOT about .... NOT about .... Worked well.] One lesson here is that EVEN IF you have compelling responses available for every claim made by an opponent, there is no need to demonstrate these, if the claims made by your opponent do not go to the heart of what a debate is about. This applies as much in a court of law as it does on social media, in a seminar at university, around the braai, on a radio talk show, and elsewhere. (It takes a certain skill to pick out what is salient, and to make a case for why material should not be engaged; most of us just rush to show off responses we have on the merits of every claim. Theres no need.) b) The second tactical flourish was to make harmless - and fair, in fact - concessions. Budlender conceded that, indeed, some of the comments from Chester Missing do defame Hofmeyr. He could also easily concede that history may be contested. He could also concede the ludicrous and unproven claim from Roodt that Koch is part of a conspiracy against Hofmeyr from unnamed leftist, Marxist historians, commentators, etc. Because - cue debate language again - EVEN IF... these claims are true, they are not grounds for confirming the interim order before this court. The lesson here is familiar to anyone well-versed in debate or rhetoric of course. It is the use of a conditional claim. You dont concede what Roodt is saying is true, but help the court puzzle through the implications of the claims made by Roodt by telling the court 1) those claims should not be assessed but 2) in the unlikely event the court thinks those claims are true, you offer argument why the truth of those claims have no bearing on the nexus legal question. Just beautiful. Made me miss teaching both practical argument and formal logic. So, what WAS the case about? in essence it was really simple actually. The key question was whether Hofmeyr had, in terms of harassment laws, proven harm? And here Budlender had an easy time, argumentation wise, because he simply needed to tell the court what was clear from reading Roodts papers, and listening to Roodt in court. Despite CLAIMING that Hofmeyr had suffered mental, psychological, and economic harm, and the realistic prospect of physical harm, these four types of harm were not proven with evidence. Now let me pause here for a second. It might, when one puts it simply or even comically, seem obvious that without evidence no argument has been made. But we do it ALL the time. Many of you reading this post have already today made confident, even arrogant, assertions without offering evidence in support of those assertions. This isnt bad argument. It is worse. It is not argument at all, strictly speaking. A bad argument is one with poor evidence. An assertion is not even an attempt to offer bad argument! And that is how shockingly poor the Hofmeyr case was. Lesson: be on the lookout for opponents who assert factual claims passionately, but without evidence. He who shouts loudest - or who trolls most actively on social media - isnt presenting the most compelling argument just on account of passion. Reasons, and evidence, matter in court, and debate generally. Not bald assertion. Budlender did construct his own positive arguments too, in addition to the spectacular deconstruction of Roodt/Hofmeyrs case. And Budlenders arguments centred around proving why Koch meets all of the available defences to him for defaming. The Harassment Act only deems conduct that is unreasonable as harassment, and this was used by Budlender as a gateway to offering positive argument. He offered excellent constitutional interpretation, and case law, for why the court, methodologically, should interpret the harassment law consistent with the aims of section 16 of the constitution governing free speech, and develop the law to be most faithful to the letter and spirit of the Bill of Rights. The Midi Television case was a very good citation here. But the heart of Budlenders positive case was demonstrating that Kochs remarks constitute protected expression under the constitution. What cases, and which oral argument devices, did he use to achieve THIS outcome? Im afraid you dont pay me to be on Facebook the whole day so I will leave you hanging right here. Ps The best part yet, in fact, of Budlenders master class was only from this point on. The use of the Laugh it Off, Citizen, and Buthelezi cases were great, and worth explaining, not just in terms of the case law they constitute, but how these were used in oral argument specifically. I particularly enjoyed the Justice Sachs quote that humour ...is the elixir of constitutional health which had me in stitches when Budlender cited the quote, and then urged the magistrate to not feel guilty if he too, like Budlender, laughed when first reading Chester Missings tweets. Such laughter was constitutionally permitted. [There was also a clever use of obiter, though not binding of course, from a case in which the court urged all of us to root out racism, and so, rather cheekily, enabled Budlender to argue that Koch has a DUTY to expose Hofmeyr! ;) ] The argument construction around protected expression deserves a self-standing little essay for wider public consumption. But Im afraid I have to go hustle now friends, so must stop here for now. I hope you chew on some of these argument lessons though. Your thoughts are most welcome.
Posted on: Thu, 04 Dec 2014 07:23:18 +0000
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