Appeal not just to rules but to justice and common sense.
Courts have been known to award judgments that seem to be unjust or to defy common sense. A defective statute, or a defective Supreme Court precedent, can (in the eyes of most judges, at least) require such a result. But don’t count on it. Consider the philosophy of Lord Denning, regarded by many as one of the greatest of 20th-century British judges:
My root belief that the proper role of a judge is to do justice between the parties before him. If there is any rule of law [that] impairs the doing of justice, then it is the province of the judge to do all he legitimately can to avoid that rule—or even to change it—so as to do justice in the instant case before him. He need not wait for the legislature to intervene: because that can never be of any help in the instant case.
To be sure, Denning was a renowned judicial activist—or a notorious one, if that is your view of things. But a similar, if not quite identical, approach was endorsed by the famous Chancellor James Kent of New York:
I saw where justice lay and the moral sense decided the cause half the time, and then I sat down to search the authorities until I had exhausted my books, and I might once in a while be embarrassed by a technical rule, but I most always found principles suited to my views of the case….
Now you may think that the “principles” contained in the “authorities” ought to lead a judge to his or her conclusion, rather than merely provide later support for a conclusion arrived at by application of the judge’s “moral sense.” And you’d be entirely right. We’re giving advice here, however, not to judges but to the lawyers who appear before them. You can bet your tasseled loafers that some judges, like Lord Denning, will be disposed to change the law to accord with their “moral sense”; and that many more will, like Chancellor Kent, base their initial decision on their “moral sense” and then scour the law for some authority to support that decision. It is therefore important to your case to demonstrate, if possible, not only that your client does prevail under applicable law but also that this result is reasonable. So you must explain why it is that what might seem unjust is in fact fair and equitable—in this very case, if possible—and. If not there, then in the vast majority of cases to which the rule you are urging will apply. You need to give the court a reason you should win that the judge could explain in a sentence or two to a non-lawyer friend.
Rely fully on the procedural and technical points that support your case. If, for example, a particular constitutional objection was not raised below and was not addressed by the lower court, say so. Whenever possible, however, accompany the procedural or technical objection with an explanation of why the pretermitted point is in any event wrong (or at least weak) on the merits. Judges will indeed dispose of cases on procedural or technical grounds—but they will do so much more reluctantly if it appears that the claim thereby excluded is a winner. If you cannot make a plausible case on the merits, then point out how the procedural or technical bar is necessary to ensure the correct result in the long term.
A real-life example: In a recent arbitration in Arkansas, the discovery cutoff came and went on February 15, by which time the parties had taken lengthy depositions and made voluminous production of documents. Counsel had one month left to prepare for the March 15 arbitration, which was slated to last two weeks. On March 8, the defendants issued subpoenas to four witnesses employed by the plaintiffs, requiring them to produce within five days all sorts of documents that the defendants had never before requested. The plaintiffs objected on grounds that the discovery cutoff had passed. But the arbitrators ordered the plaintiffs to produce the documents.
The result? During the week before trial (yes, in terms of the work required an arbitration is essentially a trial), while the defendants’ lawyers were readying themselves—preparing their witnesses and assembling the documentary evidence—the plaintiffs’ lawyers were scrambling to gather the documents required by the 11th hour subpoenas.
The argumentative mistake? In objecting to the subpoenas, the plaintiffs’ lawyers argued merely the obvious: (1) the discovery deadline had passed, and (2) the defendants could have requested these documents much earlier. The objections seemed hardly to register in the three arbitrators’ minds. Here’s what the plaintiffs could have—and should have—argued:
Plaintiffs’ counsel should not be forced to stop preparing for trial, one week away, and travel to four cities on both coasts to find documents that the defendants never asked for before the expired discovery deadline. There is a reason for discovery deadlines: they level the playing field. If the defendants succeed in this last-minutes stratagem, the plaintiffs’ team will be severely prejudiced. One week from the trial date, we should not be forced to conduct a frenetic scramble for newly subpoenaed documents. Nor should we be forced, in order to avoid that consequence, to request a deferral of the agreed-upon trial date, further delaying the justice our client is seeking. Although we are sure the defense lawyers mean well, the effect of what they have done is major-league sandbagging. We urge the panel to quash the subpoenas.
That might have worked. Certainly it stood a better chance than merely harping on the deadline. If there is prejudice, never fail to identify and argue it.
Inputs: Antonin Scalia and Bryan Garner