Legal writing series: Taking the right angle in your arguments to opposing counsel

March 25, 2014

journal writingLast week, we discussed hitting the “sweet spot” in your demand letters.  This “sweet spot” refers to a zone to which to bring your argument that goes beyond what with which your client would be satisfied without going too far such that your argument loses credibility.

Hitting this “sweet spot” is vital in making effective legal arguments (for reasons fleshed out in greater detail, check out one of the earlier posts in this series).  But where this sweet spot falls can shift based on the audience to whom you are writing.

As I said, we covered demand letters last week.  Your audience for such an argument is an opposing party, or possibly another attorney with whom you’ve had little to no contact.

Further, this argument is received by such an audience during a time in which relatively very little information is known, since litigation either hasn’t yet begun or is only in its early stages.  As such, you may be able to take the demands in your letter further than you would in later stages of litigation.

Consequently, the location of your “sweet spot” is going to be different when you are making arguments directly to your opposing party later in litigation than when you send a demand letter.  So how can you figure out where it is?

It’s actually useful to start with the same basic framework as with a demand letter: you should go beyond what your client would be satisfied with, but you’ve gone too far if your position lacks a clear legal and factual basis.  Asking for more than what your client would be satisfied with as a baseline is the easy part; the hard part is figuring out when you’ve gone too far.

For arguments to your opposing counsel later in the litigation process – typically during negotiations – the “too far” line has moved closer to the point of your client’s minimum expectations.  This is largely due to both parties having a better grasp on the facts and an improved understanding of the strengths (and weaknesses) of each other’s case.

This makes finding your sweet spot more difficult and easier at the same time.  On the one hand, the range between “not far enough” and “too far” is narrower, leaving you less room for error in making the proper arguments.  On the other hand, though, you have a fuller understanding of what the other attorney knows about the case, so you should have a better idea of what your opposition thinks about your position – allowing you to be more precise in positioning your argument.

Here’s how to find your sweet spot in these situations.  First, you must locate the point of “too far” in your argument.  You can do this by looking at all of the facts and law to which your opposition has access.  Next, put yourself in his or her shoes, and ask yourself, from your opposing counsel’s perspective, “Realistically, what’s the worst case scenario for us?”

After coming up with the answer, put yourself back into your own shoes.  That answer you produced is the “too far” line: anything you ask for past that line is going too far, and won’t be seriously considered by your opposition.

However, that “too far” line is not your sweet spot.  As discussed in the previous post, it’s good practice to stop yourself short enough of this “too far” line so that it is apparent to the other attorney that you could have asked for more than you did.  This gives your position the credibility of appearing to make a good faith attempt at negotiation, which often encourages the other side to make concessions toward a settlement – rather than immediately rejecting your position for its absurdity.

And since you opened with a position that is (or should have been) beyond what your client would have been ultimately satisfied with, you have room to depart downward from your starting position while still (hopefully) reaching a settlement that leaves your client in a better position than he or she was hoping.

Although investing time and energy into making good arguments to your opposing  counsel may not seem as important as making  good arguments to your judge, the vast majority of litigation ends in settlement , so you’ll likely find yourself needing to hit the “sweet spot” in your arguments to opposing counsel more often than you’ll need to for arguments meant for the judge.

However, we’ll be getting into writing to judges as an audience next week!