Definition
In legal usage, ARGUMENT refers to two related but distinct things: (1) a course of reasoning offered to establish a position, persuade a factfinder, or convince a court; and (2) the formal proceeding in which counsel address a court on a question of law.
1. As reasoning or advocacy: A structured presentation of evidence, logic, or legal authority intended to induce belief or support a legal conclusion. This includes oral argument before a court, written argument in a brief, and closing argument to a jury. Either party in a contested proceeding has a substantive right to be heard in argument; courts may regulate the time and manner of argument but may not eliminate the right altogether.
2. As a formal proceeding: The structured exchange of speeches by opposing counsel in proceedings turning on questions of law — a demurrer, a special case, an appeal, or similar matters. In this sense, argument is the law's analogue to trial: as trial resolves disputed facts, argument resolves disputed legal questions. It typically comprises the opening of the party with the right to begin, the response of opposing counsel, and the reply of the opening party.
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Common Language
Modern common usage (Wiktionary): To put forward as an argument; to argue. To adduce evidence or provide proof.
Historical common usage (Webster's 1913): A reason or reasons offered in proof, to induce belief, or convince the mind; reasoning expressed in words. Formerly also: proof or evidence itself (marked obsolete by 1913).
Editorial note: The ordinary English sense of "argument" often carries a connotation of dispute or quarrel — two people arguing. The legal sense is more formal and more neutral: argument is a structured act of advocacy or reasoning directed at a court or jury, not a disagreement between parties. The older sense — argument as proof or evidence itself, not merely the reasoning from it — has dropped almost entirely from legal usage but appears in pre-twentieth-century sources and can mislead researchers reading older materials.
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Common Confusion
ARGUMENT vs. EVIDENCE: In modern legal usage, argument and evidence are distinct categories. Evidence is the raw material — testimony, documents, physical exhibits — admitted for the factfinder's consideration. Argument is counsel's reasoning about what that evidence means and what conclusion it should compel. Conflating the two is a recurring source of objection at trial ("counsel is arguing, not examining") and error on appeal. Notably, Webster's 1913 still recorded "proof or evidence" as a meaning of argument, reflecting an older usage that the law has since abandoned. Researchers encountering the word in pre-twentieth-century legal texts should be alert to this now-obsolete sense.
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Recognized Forms
/SUBTYPES
Opening argument (opening statement): Counsel's preview of anticipated evidence at the start of trial. Note: in American practice, "opening argument" is often loosely used, though "opening statement" is technically preferred because counsel are not yet arguing from established evidence.
Closing argument (summation): Counsel's address to the jury at the close of evidence, synthesizing testimony and exhibits to support a verdict. Strictly regulated in many jurisdictions as to scope, order, and time.
Oral argument: Counsel's live presentation to an appellate court or motion court, subject to questioning by judges. Distinguished from argument by brief.
Written argument (brief): The documentary form of legal argument submitted to a court before or instead of oral argument.
Per diem and unit-of-time argument: A specific advocacy technique in civil damages cases, in which counsel asks the jury to assign a dollar value to discrete units of time spent in pain or suffering, then multiply to reach a total. Jurisdictionally contested as to permissibility.
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Why It Matters in Research
Researchers working across Law Mind's historical corpus will encounter "argument" used in at least three distinct registers, and context determines which applies.
First, older sources — particularly those predating the twentieth century — may use "argument" to mean proof or evidence, not merely the reasoning from proof. This obsolete sense appears in Bouvier and Anderson and reflects common usage recorded in Webster's 1913. A researcher reading that a party "offered an argument" in an eighteenth-century proceeding may be reading a statement about evidence production, not advocacy.
Second, the formal-proceeding sense of "argument" (the structured exchange of counsel's speeches on a legal question) is most prominent in English practice and in American sources drawing on English common law. Rapalje & Lawrence make the analogy explicit: argument is to questions of law as trial is to questions of fact. Researchers tracing appellate procedure or the history of demurrer practice will find this usage central.
Third, in modern American practice, argument is most often encountered in its advocacy sense — what counsel does before a jury or court. The right to argue is treated as nearly absolute in jury trials; the power of courts to restrict is limited to time and reasonable regulation, not elimination. This right has constitutional overtones in criminal cases and due process implications in civil ones.
Corpus connections: The criminal law encyclopedia entry on closing arguments addresses the modern procedural framework and limits on counsel's advocacy. The constitutional law entry on structural argument addresses argument-as-interpretive-method, a distinct usage where "argument" means a mode of constitutional reasoning (textual, structural, historical, etc.) rather than advocacy. The torts entry addresses the per diem argument specifically, where the form of the argument is itself the contested legal issue.
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Historical Dictionary Support
The historical sources converge on two definitions and diverge on emphasis. Black's (both editions) leads with the logic-and-rhetoric sense — argument as inference from premises — before turning to the procedural sense of counsel's speeches. Bouvier and Anderson lead instead with the evidentiary and persuasive functions: proof, means of inducing belief, address to jury or court. Rapalje & Lawrence focus most sharply on the formal-proceeding definition, treating argument as the structural counterpart to trial.
All sources agree that argument in the proceeding sense comprises the opening, opposing speech, and reply. None of the historical sources address oral argument to appellate courts in the modern sense with any depth, reflecting how much appellate practice has evolved since these dictionaries were compiled. The right of parties to be heard in argument on controverted questions of fact — stated by Bouvier and Anderson as nearly absolute — represents an early articulation of what later developed into due process doctrine.
What the historical dictionaries miss: they largely omit written argument (the brief) as a form, reflecting an era when oral advocacy was paramount. They also do not address the regulatory questions that now surround closing argument — curative instructions, prosecutorial misconduct standards, or the per diem controversy — because those doctrines postdate the dictionaries.
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Jurisdictional Note
The right to argue before a jury is recognized across American jurisdictions, but the scope of permissible argument varies considerably. Several states prohibit per diem and unit-of-time arguments for pain and suffering damages as inherently inflammatory; others permit them with limiting instructions. Federal courts and state courts also differ in how they treat prosecutorial argument exceeding the record, with varying standards for plain error review on appeal.
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