September 23, 2014The Main Message
At least nine times out of ten, that weak argument in your brief should be on the cutting room floor instead. Sometimes, though, you have to make it. For example, sometimes your only path to victory is a three-part legal argument, with one part based on a questionable legal proposition. If so, you just have to do your best with it.
If you have to make a weak argument, consider admitting that explicitly in your brief. The judge probably isn’t going to get farther than your opponent’s brief without realizing that yours is weak on that point, and a weak argument saps the credibility of your strong arguments. The judge will wonder if perhaps your other arguments conceal weaknesses as well.
One bold solution to this problem is to frankly acknowledge the weakness of the argument. For example:
No court in this jurisdiction has yet excluded an admission made after less than an hour of questioning, and language in Cerillo suggests that lack of sleep is irrelevant when an interrogation lasts less than six hours, but this case has extraordinary features that warrant exclusion nonetheless.
Almost any judge who reads a sentence like that will respect your honesty, will trust what you say more because of it, and will probably be more inclined to give your tough argument a fair look.