Write on

• Publication year: 2022
• Pages: 40

Write On! Vol. 45 No. 4 Pg. 40 Wyoming Bar Journal August, 2022

Policy Arguments That Warn of Negative Unintended Consequences Part 2

Michael R. Smith, J.

University of Wyoming College of Law Laramie, Wyoming

In my last edition of this column, I defined and gave examples of one specific type of policy argument in legal advocacy: "a precautionary policy argument in which an advocate attempts to persuade a court to rule in his or her favor by explaining that a decision in the opposing party's favor will set a precedent that will result in negative unintended consequences."^[1] That article explored several examples of this type of policy argument, including one set out in the Wyoming Supreme Court case of Boyce v. Jarvis.^[2] As I explained there, the Boyce case:

addressed the issue (under Connecticut law) of whether, in evaluating the financial standing of an alimony-paying ex-spouse in connection with a motion for the downward adjustment of alimony, a court should consider both the liquid and non-liquid assets of the ex-spouse. In holding that both types of assets should be considered, the court recognized a precautionary policy argument:

[A]ll assets, liquid and nonliquid alike [,] must be considered on a motion to modify alimony because a contrary rule would encourage parties who acquire substantial amounts of nonliquid assets after the original judgment to insulate themselves from paying more alimony, despite their increased wealth.

As we can see, the court in Boyce supported its ruling by recognizing the policy argument that a contrary rule would lead to undesirable future conduct with regard to alimony, namely unfair gamesmanship by crafty ex-spouses.^[3]

In this article, I will use the Boyce example to explain strategies by which legal writers can enhance the persuasive power of a precautionary policy argument. In a prior law review article, I explored in detail numerous strategies for improving the persuasiveness of these types of policy arguments.^[4] I will summarize only the main ones here.

Strategy #1 - Enhancing the Perceived Likelihood of the Negative Consequences

One general strategy for enhancing the persuasive power of a precautionary policy argument is to increase in the audience's mind the perceived likelihood that the warned-against negative consequences would indeed occur if the decision-maker rendered a decision in favor of the opposing party.^[5] In the Boyce example, this would mean increasing...