April 2, 2014
Over the past few weeks, we’ve been discussing how to hit the “sweet spot” in your written arguments – that is, how to advocate for your client’s interests without going so far as to ultimately do more harm than good.
So far we’ve only covered hitting the sweet spot in arguments to your opposing counsel. This week, we’ll finally get into arguments made to the judge.
Generally speaking, your “sweet spot” is a zone to which to bring your argument that asks for more than the minimum with which your client would be satisfied without going so far that your argument loses credibility to its intended audience.
The size and location of this “sweet spot” changes based on the identity of your audience as well as the stage of litigation in which you are currently located.
With this groundwork laid out, let’s next determine how to find the “sweet spot” when writing to a judge.
This is a fundamentally different approach than writing to your opposing counsel, partly because your goals are different in this scenario, and partly because your audience is viewing your arguments in a different light.
Here’s what I mean in regards to these “different goals:” when you’re making arguments to your opposition, whether through a demand letter or later negotiations, your ultimate goal is to reach a favorable settlement. By contrast, with a judge, you are hoping to secure a favorable ruling.
This is actually a substantial distinction, practically speaking. If you are making arguments hoping to settle, you are likely going to inflate your claims more than you would otherwise to start off negotiations in a favorable position.
If you’re making arguments to a (purportedly) disinterested judge, such inflation of claims could make you appear greedy or out of touch with the reality of the law – either of which would harm your chances with the judge.
Thus, your “sweet spot” range is going to be a bit narrower when writing to a judge. In order to locate this range, you’ll first need to discern how the judge views each side’s respective argument as best you can (if you’ve ever been in court with the judge, you can get a pretty good idea of what he or she is thinking based on the kinds of questions and comments coming from the bench).
If the judge believes your argument to be weak, scale it back closer to your client’s minimum expectations in your argument. If the judge believes your opposition’s argument to be weak, you likely have room to expand on your demands.
However, if you’ve been practicing long enough, you may have realized that quite a few judges hate making decisions for the parties. As such, you’ll encounter a number of judges (maybe even more often than not) who simply split the difference in their rulings.
Because of this, no matter how weak you believe your judge to view your argument, it’s always good practice to ask for more than your client would be satisfied with (because it’s a good bet that the judge will almost always give him or her less than you’re asking for).
On the other hand, your arguments to the judge must always be more credible than they would to your opposing counsel – which brings us to the “different audience” distinction mentioned earlier.
The reason for the increased credibility requirement is that the judge will almost certainly have all of the facts and law of the case available for his or her review. Unlike your opposing counsel, the judge can see your cards. Consequently, anything you ask for in your argument to a judge must be anchored to relevant law in some way (even more so than you would in arguments to your opposition).
There’s another reason for this besides an inability to bluff with the judge: the judge will likely be basing his or her ruling on the legal authorities found in the parties’ written arguments, and the judge will be unlikely to grant anything to either party that isn’t supported by a stable legal foundation.
Nevertheless, for reasons stated earlier, although your arguments must be more conservative when made to a judge, it’s still important to push them as far as you can take them without hurting your case.
Hopefully, these tips can help you go farther without going too far.