Hello. Welcome back to TransLegal's Lesson of the Week.
Today, we're going to talk about the term arguendo. Now arguendo is a Latin term which has different meanings on either side of the Atlantic.
In American legal English where it used most often, it means for the sake of argument or for discussion only. Thus, the term arguendo indicates that the lawyer's written or oral statement is made hypothetically or for argument or for illustration only. Making an assumption arguendo allows an attorney to present arguments in the alternative without admitting even the slightest possibility that those assumptions actually could be true. The statement made arguendo does not bear directly upon the remainder of the discussion and the lawyer is not admitting the matter, but is merely making a legal argument based on an assumption.
So the term is often used in situations where, even if one assumes that the facts are as the opposing party contends, the law or other circumstances nevertheless prevent them from prevailing. And here's the example of that: Assuming arguendo that the payment was delayed, as the opposing party is claiming, the Defendant is still not liable under the express terms of the Agreement. Here we have made an assumption that the other party was right but still proven that we would win anyway.
Now the term arguendo is commonly used in briefs to appeals courts and also in other litigation documents. Now particularly in appellate courts a judge may ask counsel what the effects of a different set of assumptions made arguendo about the facts and circumstances in the case would be. And this is helpful in exploring whether different facts might change the scope of a possible holding in a given case.
The term arguendo is very often employed by law students or junior lawyers as a way to show off their new-found lawyerliness. And one advantage of the term arguendo is that it is nice and short, even thought its Latin. However, a great disadvantage is that it is not commonly used or understood by lay people, so arguing before a jury or talking or writing for other non-lawyers it is better to use the entire phrase "for the sake of argument".
In British English, in contrast to what we just learned about American English, arguendo refers to something said during the course of an argument. For example, we would say "Ms Burke mentioned arguendo that her client had two prior convictions for armed robbery". So, what's today's takeaway? Assuming arguendo that you're going to use this term, make sure you use the right meaning in the right country.
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