Tuesday, October 2, 2012

The Itchy Trigger Finger Effect

Litigators are essentially professional wordsmiths.  Yes, litigators must excel at logical reasoning, but the litigator cannot rest upon finding the legally correct "if A, then B" proposition.  At this point, the litigator must become a writer and vividly tell the story of his client.  Diction, syntax, sentence structure and length - even rhetorical devices depending on the nature of the case - are but a few of the literary devices the litigator must employ to persuade the court to adopt his claim.

This is why legal writing is an arduous task, requiring, as it does, days, if not weeks, of writing, telling, and just plain thinking during all times of the day about the client's story.  So many hours are spent drafting, editing, and re-editing the brief, and then preparing for oral argument, that the litigator altogether dispenses with another equally vital of the trade: sound wisdom and judgment. 

A brief war story will illustrate the point.  While waiting for my case to be called - inevitably placed at the bottom of a long calendar - I observed a number of attorneys argue their cases.  The arguments were all fairly routine except for this one argument in the middle of the session.   Here, appellant's counsel opened with her argument and was met with an acerbic judge who bluntly explained, "Counsel, having a passing familiarity with the facts and procedural history of this case, I must say that your argument borders on frivolous."  Emboldened, a fellow judge chimed in as well: "Counsel, it's not just that your argument is meritless.  The problem is that your argument appears to be made up out of whole cloth."  From the appellant's perspective, the argument was an unmitigated disaster, and it was clear to everyone sitting in the courtroom that the court would unanimously affirm the judgment below. 

That is, everyone except for respondent's counsel, who delivered a point by point refutation of his adversary's argument, apparently believing that the court actually needed further convincing of the utter lack of merit in his adversary's argument.   This prompted a judge to immediately interrupt: "So counsel, do you wish to snatch defeat from the jaws of victory?"  Laughter ensued.

I call this the "itchy trigger finger" effect.  So much time is spent fortifying defenses to the weakest aspects of the argument that the lawyer appears at oral argument narrowly focused on firmly executing the battle plan.  But, as is often said, "discretion is the better part of valor," and sometimes a succinct statement such as "It appears that the court is very familiar with the facts and law so if there are no questions, I will rest of my brief" is all the lawyer needs to put the final coup de grace to your adversary's case.         

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