Lawyers are creatures of habit and custom. But that can lead to disappointing results. Too often, lawyers decide they must follow a familiar script in pursuing a matter even when a more creative approach would be preferable. And lawyers will frequently make weak arguments that are unnecessary and tend to diminish other assertions that are more persuasive.

These practices are the result of lawyers believing that if others have followed a certain path that they should, too — even when it makes no sense. They can also be the result of lawyers thinking that arguments are counted, not weighed, and the more claims one can make, the greater the chance that one of them might succeed.

There is a better way. The following suggestions will make your arguments stronger and will be welcomed by the decision maker.

THINK OUTSIDE THE BOX

Lawyers tend to imitate others even when another’s approach is arcane or irrelevant. Lawyers repeatedly file pleadings which begin with “now comes ...”. This phrase has no contemporary relevance and is rooted in the medieval origins of the legal profession where lawyers were scriveners who were paid by the word. Hopefully, we’ve evolved from that. But lawyers still file material filled with unnecessary legalisms (“inter alia” as opposed to “among other things”) and trite phrases in Latin and English that are not connected to the argument.

Lawyers can — and should — view each pleading as unique and avoid the temptation to write in a certain fashion simply because someone else has done so. Lawyers should not be afraid to make a new or novel argument consistent with the facts of the case.

FIGURE OUT HOW TO LOSE

Any lawyer can create a theory to win a case. But the best lawyers don’t stop there; they figure out how to lose. They look for the weak parts of their argument or the holes in the facts. They ask what the other side will argue and how will it respond. These lawyers are never surprised by a response because they have planned for it. Finding the weaknesses in one’s case and addressing them increases the possibility of success. But ignoring those weaknesses can lead to that embarrassing moment when a factfinder points out some controlling authority that may be fatal to a case.

BAD ARGUMENTS DRIVE OUT GOOD

Lawyers often elect to pile on theories with the hope that a plethora of arguments means that one of them will prevail. That is fallacious thinking. As it is in economics, where “bad money drives out good,” so too it is in litigation, where bad arguments drive out good.

A lawyer might develop three arguments for their client’s case but only one of them has something of a chance. The other two arguments are not convincing and will not be adopted. But some lawyers make them anyway.

Don’t.

Bad arguments are just that — bad. And placing a bad argument next to a credible one diminishes the value of the credible theory. Making specious arguments harms the lawyer’s credibility to the factfinder. It makes the lawyer seem small. Throwing everything against the wall to see what might stick ensures that nothing will adhere. All of the contentions will fail. Make the argument that is most persuasive and avoid adding theories that will never gain traction.

SIMPLE IS BETTER THAN COMPLICATED

A convoluted argument is likely to leave everyone confused. Clarity is essential when one is trying to persuade. That means that every case has to be capable of being reduced to its core. Advocates must be able to explain their claim in a few words, not many.

The longer an explanation must continue, the less likely a lawyer is to have persuaded the decision-maker. A lawyer should be able to present a brief or complaint in which the claim or theory is summarized in a short paragraph. A theory or claim which requires many paragraphs to explain will end up confusing the decision-maker.

ARGUMENTS SHOULD CONVINCE YOU

Do your arguments persuade you? If the answer is “no,” you’ve got a problem.

Every lawyer should try to place themself in the shoes of the decision-maker and decide whether they would rule for their client if they were the one making the decision. Sure, a lawyer can try to float a theory or an argument and hope that it will work. But the lawyer should first be able to persuade themself that their argument is legitimate.

It’s not enough that the argument is rational; it has to be persuasive. Read the brief or complaint and ask whether you, as the reader, are sold. If you are not persuaded, then the decision-maker will not be persuaded.

PLAIN ENGLISH, PLEASE

Briefs and pleadings should never read like an insurance policy. Every argument should be presented in clear language with sentences compact and paragraphs short. An advocate once filed a brief in which a heading — not a paragraph — was 27 words. Brief headings should be one sentence. Advocates should be able to reduce their arguments to their core and present them in a few words. Long sentences and paragraphs that are simply repetition of earlier arguments merely annoy the reader and do not persuade them. Trite phrases or Latin expressions should always be avoided. So should conclusions (“ ... it is clear that Plaintiff’s arguments are correct ...”).

Words matter. And the fewer words used, the more likely it is that the reader will remember what they read.

SOMETIMES YOU’RE WRONG

While it should not happen, it is not uncommon for lawyers to receive a response to an argument which surprises them and reveals that their theory is simply wrong. No lawyer should hang on to a theory when the opponent has presented an argument which so undercuts the lawyer’s contentions that their claim cannot prevail. But some lawyers continue to stay with theories that are wrong, believing they cannot retreat from their position or undercut their previous contentions.

The reality is that lawyers have an obligation to be candid with the tribunal and with their client. It may be a difficult conversation but at some point, the lawyer should be ready to explain that a theory did not work and the client’s position will not be adopted.

Setting aside the ethical issues here, the lawyer should first tell themselves the truth: They’re going to lose, and that can’t be avoided. The lawyer should be prepared to acknowledge that to the decision-maker rather than waiting for someone else to tell the client that he or she is wrong; that is the lawyer’s obligation. It is better to withdraw a bad claim and ask for time to reconfigure the action then to ride a theory into oblivion.

CONCLUSION

No set of suggestions or guides is perfect or applicable to every situation. But these seven ideas can make the difference between a successful presentation and a bad one. Lawyers who ignore these principles can still win cases, of course. But applying these ideas can increase the chances that an argument will be considered seriously and viewed favorably.