The Art Of Persuading Judges
Take pains to select your best arguments. Concentrate your fire
The most important–the very most important—step you will take in any presentation, whether before a trial court or an appellate court, is selecting the arguments that you’ll advance. A mediocre advocate defending a good position will beat an excellent advocate defending a bad position nine times out of ten. (We made up this statistic, but it’s probably correct.). Give considerable thought to what your argument should be, and talk it over with your associates. Bear in mind that in an appeal, trial counsel is not necessarily the best person to make the call. Extreme attachment to a rejected point can color one’s judgment about which rulings lend themselves to effective challenge. Think of the poker player who can’t beat to fold three aces even after it has come to seem very likely that the opponent has a full house.
Scattershot argument is ineffective. It gives the impression of weakness and desperation, and it insults the intelligence of the court. If you’re not going to win on your stronger arguments, you surely won’t win on your weaker ones. It is the skill of the lawyer to know which is which. Pick your best independent reasons why you should prevail—preferably no more than three—and develop them fully. You might contend, for example, that (1) the breach-of-contract claim is barred by the statute of limitations; (2) the performance complied with the contract; and (3) any deficiency in performances was accepted as adequate and hence waived. Of course, each point may be supported by several lines of argument.
Lawyers notoriously multiply their points, just as they notoriously multiply their verbs (“give, grant, bargain, sell, and convey”). Some of the multifarious points often turn out to be just earlier points stated differently. Sometimes they result from including the pet theory of every lawyer on the case. Don’t let that happen. Arm-wrestle, if necessary, to see whose brainchild gets cut. And don’t let the client dictate your choice; you are being paid for your judgment.
On the surface, it might seem that a ten-point argument has been overanalyzed. In reality, it has been under analyzed. Counsel has not taken the trouble to determine which arguments are strongest or endured the pain of eliminating those that are weakest.