Persuasive Writing: Letting Go of the Kitchen Sink

In a post about persuasive advocacy, the Sardonic Lawyer writes--

I've been thinking a lot lately about the poor job many attorneys do of limiting themselves to legitimate arguments on behalf of the client, as opposed to the "kitchen sink" approach I encountered quite a bit in practice. If, someday, I have the opportunity to teach an ethics course in law school, I think I'll dedicate at least one class to the practical question of distinguishing between zealous advocacy and shameless idiocy.

The post continues with a list of six rules to use to determine if a lawyer has crossed the line from advocacy to idiocy. It's well worth a read.

In practice, I think the Sardonic Lawyer's rules are most often violated when lawyers write briefs. It frequently happens, for example, when a low-level associate does a draft of a memorandum that necessarily includes every conceivable point, and then turns it in to a superior who has insufficient time for editing.

It also happens when lawyers don't want to let go of an argument because they think they might need it on appeal. This raises two other issues: Why preserve a weak argument? And is it necessarily waived if not included in a trial-level brief? Often that's not the case.

Comments

[Eh Nonymous]

Evan,

Your comment about "why preserve the argument, if it's weak" points up one of the (many) problems with litigation strategy.

If not preserved, then waived. I had this point pounded into me in law school; hopefully, the result will be that I do not forget it during trial or at the close of evidence. Fail to preserve the objection, and renew it, and you have lost any hope of prevailing upon it later, unless it is manifest glaring error.

But, preserve everything, and you don't just look unprofessional: you can lose. See Howard Bashman's appellate litigation columns, some of which you have previously featured. Recently, a party lost their appeal - lost it entirely - by trying to raise too many issues, in a wandering and incoherent brief that probably did far too much, and not at all well. I also like his advice, here: Ten Tips for Excellence in Appellate Advocacy.

That would include "#3: Raise and argue the right issues and the right number of issues." Well, sometimes it's not obvious what those are, either of them.

I remember some bittersweet moments in law school, when I learned that clear error had occurred (but not grave, constitutional, reach-out-and-save-it error) which, if preserved, would have allowed the losing party to instead prevail. But they didn't correctly predict which issue or issues would shift (sands are unpredictable, and much law is built on them) by the time the case finally reached appeal (or further appeal), because ... and this is obvious, but important:

Things Change. Pre-Enron, a claim of willful destruction of documents and intentional accounting shenanigans would sound like hysteria. Post-, even a weak claim, if it's got the right subject matter, suddenly gains sinister overtones, with a whisper of "Nigerian Barge deal" or "energy task force" or "widespread market manipulation to artificially create an energy scarcity, thereby driving up prices."

It's been said before, but I'll say it again: timing's everything.