August 13, 2013The Main Message
Felix Frankfurter is reputed to have said “a bad argument is like the clock striking thirteen, it puts in doubt the others.” Imagine yourself listening to a clock tolling the hours: one, two, three … ten, eleven, twelve. Ah, it’s twelve o’clock. Then, with one more “bong” the clock dispels all of your confidence in it and in the correct time. And so it is with weak arguments; their very presence in a brief undermines confidence in everything else that you have said.
Lawyers are often terrified to cut any argument, because “you never know what the court will hang its hat on,” or because “we might want that for appeal,” or, very strangely, because “you should give them something to reject.”
But it is not harmless to include a weak argument that ultimately will not persuade. The court’s time and attention is not a free and inexhaustible resource, and neither is your credibility. Both are in scant supply and are, for practical purposes, nonrenewable.
If the court must wade through multiple arguments, one or more of which are questionable, the value of the good arguments will be diminished in two different ways. First, they will be diminished by dilution: the court’s attention will be divided and wasted by the attempt to pay attention to too much material. This is closely allied to the sin of using every page allotted to you even when you can make a cogent argument in fewer pages. Judges hate this imposition on their time perhaps more than anything else that lawyers do.
The second way that strong arguments are undermined by weak is that the very existence of the weak argument poisons the strong by association. A bad argument tells the court that either you are unable to tell the difference between a strong argument and a weak one, or that you can tell the difference but think that the court can’t. Neither option is flattering. A weak argument tells the court that you can’t be trusted to discriminate between the important and the unimportant, and that you lack confidence in your other arguments.
As for the contention that you never know what may appeal to the court, it is your job to figure that out. In part that means knowing your judge or judges. For example, if the judge is is a fierce stickler for procedural rules who will enforce them even when it means disposing of a claim that seems meritorious, then a rule-based defense is more likely to work. If your judge always gives parties who violate a rule another chance, then you probably shouldn’t bother to make an argument for strict enforcement.
Briefing only strong arguments means knowing your own case well enough to know which arguments should appear strong and which should appear weak to any intelligent and rational finder of fact, based on their logic, emotional appeal, and their grounding in the facts of the case and the applicable law. Just shoving in every argument that occurs to you suggests that you have done neither.
It can be very difficult for a lawyer who is deeply invested in a case to abandon a long-cherished argument. That’s why a reading by an intelligent but uninvolved third party can be so valuable. In fact, that sort of review is probably more valuable than a moot session in which you practice your oral argument: by the time you get up to argue, your panel may have already decided the case—or at least formed strong views about it—from the briefing alone. Find out which arguments don’t persuade, and cut them out ruthlessly. If you end up with two arguments and twenty pages under the limit, so much the better. Your brief will stand out from the rest as a display of remarkable confidence, control, and respect for the court.
I don’t know when Justice Frankfurter said what he did about a bad argument being like a clock striking thirteen (if he did say it), but if it was after the publication of George Orwell’s book 1984, it may have been a conscious echo of the first sentence of that novel about the wickedness of false arguments: “It was a bright cold day in April, and the clocks were striking thirteen.” Orwell was a savage critic of fuzzy writing whether or not it was being used as a tool of totalitarian thought control, and in addition to 1984 wrote a very fine essay called Politics and the English Language. You should read it; it is fewer than ten pages long and readily available online. In it Orwell gave six rules for good writing, including this one: “If it is possible to cut a word out, always cut it out.” That is true for superfluous words and for paragraphs, pages, and sections; how much more so for arguments that, by their weakness, poison and drag down the whole brief.