January 01, 2014

Over-Arguing Your Case

There is practical wisdom behind judges’ complaints about over-arguing lawyers.

Hon. Matthew F. Kennelly

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Judges—mostly appellate judges—commonly chastise lawyers for making too many arguments or including too many points in their briefs. Judge Richard Posner has written, “We do not tolerate blunderbuss appeals loaded with frivolous scattershot that wastes our time and appellees’ money.” Rice v. Nova Biomedical Corp., 38 F.3d 909, 918 (7th Cir. 1994). The Supreme Court has put it somewhat more gently: “Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.” Jones v. Barnes, 463 U.S 745, 751–52 (1983) (Burger, C. J.).

If you are like a lot of practicing lawyers, your reaction when reading comments like these from judges may be, “Easy for them to say.” What’s weak from the perspective of the deciding judge may not have seemed so weak to the lawyer at the time he or she made the argument. Most veteran lawyers can tell you about cases in which an argument that they thought had little chance of prevailing was the one that carried the day. So it is all well and good for judges to tell lawyers to leave out the weak arguments. It’s much tougher for lawyers to figure out in advance which ones those are.

Does this sort of judicial commentary actually have merit? Or should it be dismissed as whiny and unhelpfully judge-centric? I come at this not only from the perspective of a trial judge of 14 years but also from that of a practicing lawyer for 18 years before that. There is, in fact, practical wisdom behind judges’ complaints about over-arguing lawyers. Let me explain why.

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