March 13, 2014
In all of the posts in this series on legal writing so far, we’ve only ventured into effective use of covert advocacy. Naturally, since a great deal of your written advocacy will be explicit, it’s important to discuss that aspect as well.
Of course, there have been countless works written on effective written advocacy, so I’ll try to avoid covering the same ground that’s been repeatedly charted already by focusing not on how to make the strongest argument possible, but instead on how to know when you could be overextending in your argument.
What do I mean by “overextending?” In short, it’s going too far in your position such that your argument suffers on the whole.
You may be asking yourself if it’s truly possible to go “too far” in your argument, but it is often a fatal mistake made by many attorneys – and they may not even realize it.
To be sure, there are a number of reasons why it may be desirable to take your argument to the furthest ends of the spectrum possible. For one, judges frequently try to find some kind of middle ground between the parties’ competing arguments. Even if the judge sides with one party over the other, it’s unusual for the ruling to adopt 100% of that party’s argument. Instead, the judge will either (or both) integrate elements from the losing party’s argument or water down her findings so that they don’t go quite as far as the prevailing party’s claims or desired remedies.
In addition, you may regularly find that your opposing party’s argument and remedies sought to be more extreme than you may believe to be reasonable – because they are espousing such a strategy as described earlier.
Under these circumstances, it would seem logical to ask for greater relief or take your argument further than your client would be satisfied with, since, even if the judge doesn’t go quite as far as you’re arguing she should (which is the most likely scenario), the place at which the judge settles is going to be somewhere in the same realm as what your client actually wanted. Moreover, if your opposition is taking a relatively extreme position, it’s all the more advantageous to push your argument to its own extreme to balance it out.
But, as mentioned earlier, it’s possible to overextend in your argument, thereby damaging your overall chances at success.
To understand how far is too far in your argument, let’s first look at how overextending works against your case.
First, overextending makes your argument lose credibility because it appears so detached from the facts or the law that the judge may find it difficult to believe anything that you’re saying. Thus, the first step in preventing yourself from overextending in your argument is to make sure that everything that you are arguing or proposing is within the realm of reason. This can be difficult if you are working on the case alone, since you may become so engrossed in your own argument that you may not realize what is objectively reasonable and what isn’t. Therefore, having a second set of eyes to look over your arguments can be extremely helpful in this regard.
Second, if you take your argument too far, you may rile up your opposition such that you lose any potential goodwill that you may have had with them. Why does it matter what your opposition thinks about you? Because in the vast majority of cases, you’re going to want to reach a settlement with the other party. If you upset them by what you say in your written arguments, negotiation will be far more difficult if not impossible.
The best way to consider the effect that your argument will have on the opposing party is to play devil’s advocate and look at the case from the other side. Again, this may be difficult for you to do alone since you may become so engrossed in your own argument, so a second set of eyes is helpful here, too.
Essentially, you want to strongly advocate for your client – just not too strongly.
Next week, we’ll be covering overextending in specific contexts.