Over the years, I’ve come up with a few heuristics to quickly gauge the strength of an opponent’s case. An obvious one is body language. A little further down the list is ease or difficulty in getting opposing counsel on the phone or into court–generally, the harder it is to track opposing counsel down, the easier your case will be.
But my absolute favorite is the level of civility in opposing counsel’s briefing (and, to a lesser extent, argument). The Colonel and I did a piece on civility earlier this year, in which we interviewed a number of judges and justices. The Robes uniformly told us that uncivil or personal argument does not work, and some of them even take it as a sign of weakness in the underlying argument. In other words, needless bluster either dilutes your argument (which is bad) or affirmatively signals its weakness to the court (which is worse).
My unscientific study over the twelve months or so since those interviews bears this out.Civility of tone and strength of legal argument are strongly correlated. In hindsight, that shouldn’t be surprising. As Judge Weckstein told us, he assumes that if a lawyer has the goods, he’ll go with the goods instead of resorting to invective. I am fast adopting his worldview. It’s gotten to the point now where I am pleasantly surprised when I open a brief to find an adverb-laden account of why my arguments are a desperate, disingenuous 11th-hour attempt to divert the Court’s attention from the fatal defect in my client’s case. That means that I’m winning.
Effective lawyers gain credibility with the court by providing useful information in a manner that is helpful and respectful of the court’s time. That means carefully organized briefs without
- personal attacks,
- needless (ad)verbiage,
- string cites for uncontroversial propositions, and
- overly clever word choices and rhetorical flourishes.
It’s the tight, well-structured brief that gives me pause these days. And when I can tell that my opponent was writing with a smile on his or her face, I really start to get worried.