Bryan A. Garner, editor of
Making Your Case: The Art of Persuading Judges
Garner on Language and Writing
Recently, when I was teaching a seminar on advocacy, one participant asked, “What do you do if there’s a real weakness in your case? Do you mention it in your brief or oral argument?” Another participant chimed in, “You’d never mention it, would you? You don’t want to call attention to your own weaknesses!”
In fact, the wiser strategy is a little counterintuitive: whether you’re before a judge or a jury, bring out your vulnerable points and show that they don’t really harm your case. If, for example, you’re a prosecutor whose main witness is a convicted criminal who’s been given leniency in exchange for testifying, or is a paid government informant, you must bring out that fact on direct examination. Don’t let the defense lawyers squawk about it on cross-examination. If your adversary is the one who mentions your weaknesses, you don’t get to control the presentation, or the “spin” that’s put on the point, when the jury first hears about it. But if you’ve already made the disclosure in your direct examination, then the jury is more likely to conclude that this isn’t much of a weakness at all.
This strategy of putting forward your biggest weakness and dealing with it forthrightly has traditionally been called “grasping your nettles firmly.” Leaves of the stinging nettle—a mint-like perennial weed—contain irritating chemicals that, when brushed against, feel like the sting of a bee. But a firmer, bolder grasp of the weed’s stem is less likely to result in a sting. To grasp your net-tles firmly is to act boldly in performing an unpleasant task. The legal metaphor is apt: if you take hold of the weaknesses in your case and handle them appropriately, they’re less likely to damage you. If you ignore them, or just brush against them, they’re more likely to sting.
Let’s consider a case in point. One of the most successful litigators in the country, Brian O’Neill of Minneapolis, once represented a class of fishermen in an oil-spill case in the Gulf of Alaska. Millions of fish had been killed in the oil spill, and the fishermen had sued the responsible oil company. The problem for the fishermen, though, was that they’d had a record catch that year: more fish came in during the year of the spill than before or after. In various mock trials, O’Neill kept losing the case. The juries rejected the fishermen’s claim for damages because, after all, they’d had a record year. That was a huge weakness. It seemed to undercut the entire lawsuit.
But then it occurred to O’Neill and his colleagues how they might frame the argument a little differently for their 805 clients. Here was their new approach: In fishing, as in farming, there are good years and bad years, and perhaps once in a person’s career there’ll be a bonanza year—a year that makes life in an arduous, up-and-down industry worth the commitment. This year would have been the bonanza year for those fishermen, and they were deprived of it. Sure, they made a little more money that year than they did just before or after, but they were deprived of what would have been their year of a lifetime.
With that argument, O’Neill began winning mock trials, and then he won in 16 test-case trials tried to juries. Ultimately, the oil company settled all the claims for $51 million. In retrospect, O’Neill recounts, the argument seems pretty obvious. But it took two years of working on the case before anyone thought of the winning strategy.
The age-old advice among professional rhetoricians is to organize an argument this way: (1) make your positive case, (2) knock down the obvious counterarguments, and (3) drive your main point home. Address the adversary’s points—or what you suspect they’ll be—in the middle of your argument, not at the beginning or the end. You never want to put the opponent’s points in the most prominent positions of your brief. And demolish those points quickly, with unanswerable punches if possible. Don’t dwell on the counterarguments. And there’s no need to refute a highly subtle or nonobvious counterargument that probably hasn’t occurred to the opposition—instead, let your opponents waive it.
Adopting this strategy has at least three benefits. First, you put your adversary on the defensive. Second, if the adversary does make the argu-ment you’ve already demolished, you’ve made it sound as if the adver-sary wasn’t listening to you. Third, by taking on the reasons why the court might favor a contrary decision, you’ve shown yourself to be an honest, informed advocate who has thought through all sides of the case. As you carry your points, you’re managing the opposition. And when you do it effectively, the reader or listener senses your logical and argu-mentative triumph.
It’s all a matter of trust. You want your readers or listeners to know that when you’re vulnerable on a point—either factually or legally—you’re exposing the weakness and dealing with it forthrightly. You’re acknowledging things as they are, not pretending that they’re more favorable to you than they are. The mature advocate knows that every case, every case, has its embarrassments that must be handled both frankly and fairly.