Crafting winning arguments: tips from a litigator

The sheer volume of litigation facing the courts today necessitates that lawyers provide well-prepared arguments that can be understood quickly and then confidently ruled upon by the court.

Crafting complete, clear and concise written arguments is particularly vital, as more cases than ever, in both trial and appellate courts, are decided without oral argument.

Litigator Cecil C. Kuhne III of Fulbright & Jaworski in Dallas recently authored Building Your Best Argument, and shares advice for developing effective winning arguments.

What are the biggest mistakes that lawyers make in building their case?

I think the biggest mistake is failing to provide the court with a brief and concise view of the law and facts, without unnecessary distractions. It is impossible, of course, to write more clearly than you think. Painstaking care in expressing what you want to say will help you avoid the hazy writing that a less careful approach produces.

The argument will ultimately be evaluated by how well it educates and convinces the judge that the reasoning and authorities contained within are correct. The key to building a great argument is to design a logically reasonable theory, and then reinforce it with compelling propositions and authority. The most persuasive arguments are not necessarily the most emotionally or morally moving. They are simply the ones with which the court is most likely to agree.

With the continued growth of litigation, you stress the increasing importance of clarity in a legal argument. Could you talk a bit more about that?

Lawyers often work with complicated situations that must be explained to a judge who has a limited amount of time to resolve those issues. This makes it imperative that the litigator present the clearest argument possible. If not, there is great risk that the busy judge may misinterpret it.

A judge simply doesn’t have time to decipher a poorly prepared argument, and the lawyer’s credibility with the court will be damaged in the process. When the lawyer’s communication even slightly obscures the message, he risks immediate rejection from the court. This is so even though he might have obtained agreement from the court had he simply been more clear. When it comes to clarity, the lawyer rarely gets a second chance.

You say that good organization is key to an effective legal argument, and that a chronological presentation isn’t always the best way to structure analysis. What are some best practices around organization?

In general, it’s best to first present the issues on which you are most likely to win. Within those issues, you should present your strongest points first. And within those points you should correspondingly cite your best authority first.

The overall goal should be to focus the judge’s thoughts on the most appealing theory. An effective legal argument is not just a collection of stray thoughts, so you cannot afford to let the judge lose sight of how your propositions are related to one another. You must enable the judge to clearly see your train of thought. Soon after you begin to discuss each issue, you must remind the judge exactly what your theory is.

 

Judges say that the summary is one of the aspects that counsel commonly neglects. While drafting a summary can seem mundane to many lawyers, why should they pay close attention to it?

A good summary provides a bird’s eye view of the verbal landscape that lies below. It makes the argument more palatable and less intimidating than it might appear at first glance.

The summary is useful because it helps cement the argument’s main points in the judge’s mind and provides tidiness to the development of the argument. Judges, like all readers, appreciate a helpful wrap-up of the material before them. Its aim is to impress the court with the soundness and justice of one’s cause. Here, if anywhere, lies the perfect place for displaying eloquence and wit, and memorable lines can have a powerful impact on the judge.

How does a lawyer’s ability to set up the background information of her case impact the court?

Legal controversies are ultimately about people, and if the judge can visualize real people doing actual things, he usually begins to take sides.

Facts are ultimately important because they move the court’s decision. The most effective fact statements convince through organization that emphasizes important facts over irrelevant ones, and word choice that is favorable to your client, but whose veracity cannot be disputed by your adversary. Effective statements of fact will lead the court to conclude that the equities are on your side. And when a judge finds himself in that position, his mind is often receptive enough to rule in your favor.

What is the best way for an attorney to explain the procedural history of the case?

Balance is everything. It is your job to provide enough detail to promote your theory of the case, but not so much that the critical points of the argument are lost in the morass. To describe the previous ruling in a light that persuasively advances your case is undoubtedly a challenge. You must do so honestly, of course, so that your adversary can never accuse you of misrepresenting the facts.  But detailing the case’s history offers a tremendous opportunity to breathe life into a story that concerns real people. The history of the case should foreshadow the contentions you are about to advance in your argument.

What part of building a case do you think receives less attention than it should?

Preparing an introduction to a legal argument sounds like a boring and mundane task, but the opportunities it offers for persuading the court are enormous. The beginning of an argument greatly influences how its later passages will be read, and courts tend to read submissions most carefully at the beginning. Because judges are pressed for time, they expect the strongest arguments first.  If they find themselves initially considering weak points, they either form an adverse opinion—or worse—they stop reading altogether. Time spent in preparing the introduction is well worth the effort.

Is there a best way to challenge your opponent’s argument? Do you suggest framing it by showing its flaws or by arguing for the merit of your argument?

Generally speaking, your argument will be better received if you frame it first, before attacking the positions of opposing counsel. The court’s impression should be that you deserve to win, rather than your adversary deserves to lose.  A defensive tone can quickly undermine an otherwise commendable argument. A frontal attack—on grounds that the precedent is poorly reasoned or that changes in public policy have made it irrelevant—is almost always a losing battle. Judges invariably prefer distinguishing and reconciling precedent to that of flatly overruling it.  An elaborate analysis of your opponent’s points may show over-concern about their importance. You should dispense of those points as quickly and forcefully as you can—and then move on.

What’s your top advice for lawyers in building their argument?

To write clearly, you must not only gather your material and carefully organize it, but you must think deeply about it. You must ponder the relationship of facts and law to one another, evaluate the importance of one point over another, and then construct a logical plan of presentation. Considerable time must be spent digesting, organizing and thinking through the implications of the material before you even begin to write. Only when you see clearly what is central to the argument can you persuade the court to focus on those points, instead of dispersing attention over a morass of details in which nothing significant stands out.

see http://www.abanet.org/media/youraba/201012/article01.html. for more info.

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