You Made Your Case

Yield indefensible terrain – ostentatiously.

Don’t’ try to defend the indefensible. If a legal rule favoring your outcome is exceedingly difficult to square with the facts of your case, forget about it. You will have to consume an inordinate amount of argument time defending it against judges’ attacks, and you will convey an appearance of unreasonableness (not to say desperation) that will damage your whole case.

Rarely will all the points, both of fact and of law, be in your favor. Openly acknowledge the ones that are against you. In fact, if you’re the appellant, run forth to meet the obvious ones. In your opening brief, raise them candidly and explain why they aren’t dispositive. Don’t leave it to the appellee to bring them to the court’s attention. Fessing up at the outset carries two advantages.

First, it avoids the impression that you have tried to sweep these unfavorable factors under the rug. Second, it demonstrates that, reasonable person that you are, you have carefully considered these matters but don’t regard them as significant.

Suppose, however, that you’re the appellee and those damaging points have already been noted by your adversary. Don’t pass them by in sullen silence. Make a virtue of a necessity. Boldly proclaim your acceptance of them—therby demonstrating your fairness, your generosity, and your confidence in the strength of your case, and burnishing your image as an eminently reasonable advocate: “We concede, Your Honor, that no notice was given in this case. The facts cannot be read otherwise.”

(Huzzab! Thinks the court. An even-banded fellow!) You then go on, of course, to explain why the conceded point makes no difference or why other factors outweigh it.

Bear in mind that a weak argument does more than merely dilute your brief. It speaks poorly of your judgment and thus reduces confidence in your other points. As the saying goes, it is like the 13th stroke of a clock: not only wrong in itself, but casting doubt on all that preceded it.

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