Monday, July 6, 2009

Seeing what Sticks

I don't know how many times I heard a professor say this in law school, nor how many times I've heard it elsewhere when talking about what legal arguments to raise. The story, as it usually goes, is this. A lawyer talks about some case they had where they raised what he or she thought was the two or three best legal arguments, then she throws in two or more arguments that really seem to have no chance, "just because" and then the judge rules for her based on one of the arguments that was a throw away. The moral the lawyer learns from this is "throw everything against the wall and see what sticks" because "you never know what obscure legal argument the court may adopt."

I have my doubts about this strategy. It seems more like ass covering than actual good lawyering to me. If some obscure argument wins while the "strong" arguments don't, my first thought is that the lawyer really did not have a clue what the best arguments were. Sure, maybe the judge is just an idiot, which also happens, but then, if the judge is an idiot who won't follow the law, there isn't too much you can do about that but appeal to an appellate tribunal that will follow the law (as the intermediate appellate courts generally do - at least, much better than a circuit court).

The best approach is to only raise those issues you are strong on, and leave out the weak ones. They just waste the court's time (and yours), they reduce your credibility with the court, and they may annoy the court if they are so weak as to be almost frivolous to raise. I know they would annoy me if I were a judge (and I have been in the position where I had to think like one).

Obviously, it is important to really know which issues are strongest (and which are bullshit) - and if you are insecure about that, you are probably not qualified to represent your client and ought to either refer the client to someone else or seek a mentor to help you out (and of course, none of that gets charged to the client - the client pays for legal services, not your education).

But "throwing everything at the wall" and hoping something sticks is certainly not good lawyering. I think it tends to resemble what you get when a person, not a lawyer, tries to represent themself. They often just cite one irrelevant legal issue after another, and sometimes, perhaps by chance, one of them actually has merit. That is to be expected from a non-lawyer. I don't think it is acceptable from an actual member of the bar. But hey, I've only been a lawyer a short while, so what do I know?

1 comment:

armagh444 said...

For whatever it's worth, I generally toss the weak arguments. Yeah, there's the whole spaghetti-lawyering school, but if what my senior partner says is correct (and it usually is), that hurts you more than it helps the overwhelming majority of the time.