The Art Of Persuading Judges
Occupy the most defensible terrain
Select the most easily defensible position that favors your client. Don’t assume more of a burden than you must. If, for example, a leading case comes out differently from your desired result, don’t argue that it should be overruled if there is a reasonable basis for distinguishing it. If you’re arguing for a new rule in a case of first impression, frame a narrow rule that is consistent with judgment for your client. (Why set yourself the task of providing a satisfactory answer to 100 hypothetical questions about the multifarious effects of a broad rule when you can limit the questions to 5 about the limited effects of a narrow one?) if the defendant has intentionally injured your client in some novel fashion, argue for the existence of some hitherto unrecognized international tort, not for a rule that includes negligent acts as well.
Taking the high ground does not mean being noncommittal—saying, for example, that you win under any of three different possible rules, without taking a position about which rule is best. The judge writing an opinion, especially an appellate judge, cannot indulge that luxury, but must say what the law is. Be helpful. Sure, point out that you win under various rules, but specify what the rule ought to be. If you fail to do that, you leave the impression that all your proposed rules are problematic.
Don’t let your adversary’s vehement attacks on your moderate position drive you to less defensible ground. If, for example, your position is that an earlier case is distinguishable, don’t get muscled into suggesting that it be overruled. And don’t let your adversary get away with recharacterizing your position to make it more extreme (a common ploy). If you are arguing, for example, that lawful resident aliens are entitled to certain government benefits, don’t leave unanswered your opponent’s suggestion that you would reward illegal aliens. Respond at the first opportunity.
On rare occasions it may be in the institutional interest of your client to argue for a broader rule than is necessary to win the case at hand. When you take this tack, the court is likely to ask why it should go so far when a much narrower holding will dispose of the case. Have an answer.
Antonin Scalia & Bryan A Garner