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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.

Reasons for Winnowing

First, judges, like lawyers, are busy people. We have a lot of material to read and not all that much time to read it. I’m a trial judge in a busy urban federal trial court. On a typical day, I receive anywhere from 3 to 10 briefs and any number of significant, nonroutine motions. I review new complaints in civil cases to assess jurisdiction and for scheduling purposes, as well as plea agreements and presentence reports in criminal cases. Then there is reading that I have to do to keep up with the law. And this does not account for the time I spend in the courtroom trying cases and conducting hearings; or the time I spend working on decisions, interacting with staff and other judges, and doing all of the other things that judges do. There is only so much a human being can absorb. As a litigant, you will have the judge’s undivided attention only briefly. Use that opportunity wisely.

Second, weak arguments physically drive out better arguments. You will almost always have to work within page limits (or word or line limits). Generally speaking, you will not have enough space to write as much as you want on every point that might have occurred to you. The more space you use on the less meritorious points, the less you have for the stronger ones.

Third, the more you focus on weaker or smaller points, the more likely it is that you will detract from the force of your stronger and more significant points. For example, I’ve found it common for lawyers to spend so much time focusing on minor procedural flaws in their opponent’s submissions that they divert focus from stronger substantive arguments. By the time I get to the substantive points, I am left wondering why, if those are such good arguments, the lawyers spent so much time on inconsequential points. We would all like to think that judges can get past these sort of reactions, but do not bet your case on it. As Judge Frank Easterbrook has written, a brief that includes too many points “sends the message that counsel does not think much of any of the claims raised—or perhaps does not believe the court able to separate good arguments from bad.” Max M. v. New Trier High Sch. Dist. No. 203, 859 F.2d 1297, 1300 (7th Cir. 1988).

I recently reviewed a summary judgment brief by a pro se litigant that was 40 pages long and seemed to contain 10 or 12 arguments—everything including the kitchen sink. It wasn’t just that I could not figure out which were the most important points; I couldn’t even figure out what the litigant believed were the most important points. Few lawyers would have filed such a brief. But there are plenty who do the same thing on a smaller scale, cluttering the record with an amalgam of largely unprioritized arguments. The lawyer who files this sort of brief does no service to his or her client. Persuasion does not come from flinging arguments at the judge and hoping that one will stick.

For these reasons and others, judicial grousing about scattershot briefs is valid. You need to make choices about what points to advance, and you want them to be good choices. It is important, of course, to focus on the arguments, both factual and legal, that are the most likely to succeed. But it is equally important to leave out those points that are more likely to divert attention than to persuade. As the old Bing Crosby song goes, you’ve got to accentuate the positive, eliminate the negative, latch onto the affirmative, and don’t mess with Mister In–Between.

Stating this principle, of course, is the easy part. The tougher issue is how to put it into practice.

My focus is on cases being litigated at the trial court level. Separating the wheat from the chaff tends to be easier to do in an appeal. The disputed issues have been narrowed, the record has been developed, and the arguments have been tested once. Not everything is reviewed de novo, so the standard of review itself may make some arguments long shots at best and thus worthy of being jettisoned. The normal winnowing that one reasonably expects to happen before a case goes up on appeal largely explains, I suspect, why most of the commentary about excessive argument comes from appellate judges.

Most cases, however, do not go up on appeal. Most of the action takes place at the trial court level, before everything has been through the wringer once. Lawyers find it harder to ascertain what is a time waster, or what a particular judge may regard as a time waster, before there has been any judicial decision making in the first instance. That said, you are no better off wasting time and space on weak arguments when you are before the trial court than when you are on appeal. Trial courts tend to have more cases than appellate courts but fewer resources (such as law clerks). So you will have even less of a crack at a trial judge’s undivided attention than you have with an appellate judge.

Rules of Thumb

Unfortunately, there is no such thing as a set of hard-and-fast rules telling you which arguments to include and which ones to leave out when you are litigating in the trial court. Like most questions about legal strategy, the answer to this one is that it depends. But there are several rules of thumb that litigants can and should follow in deciding how to allocate their limited time and space. Some of these may seem obvious, but you would be surprised to see how frequently lawyers ignore them.


1. Don’t make arguments that are contrary to controlling authority. As a general rule, it is not productive to waste your limited space on arguments that are contrary to controlling authority. Fortunes are not made by betting on a judge changing his or her mind on a topic that has already been decided definitively. If you do choose to make an argument like this, you need to be up front about it, acknowledge (and cite) the contrary authority, and explain why you think it should be overruled. You have an obligation under ethical rules to cite controlling adverse authority—see ABA Model R. of Prof’l Conduct 3.3(a)(2)—and besides that, it is just smart practice. If you make an argument without citing contrary controlling authority, you risk imposition of sanctions, not to mention loss of your credibility. You may harm your likelihood of success on your stronger points as well as in other disputes as your case progresses. A lawyer who is perceived to have hidden the ball is less likely to be believed.


2. Be careful about making arguments that are contrary to the weight of persuasive authority. You should not make an argument that is contrary to the weight of persuasive, noncontrolling authority, unless you are willing to acknowledge the adverse authority and explain why it is wrong or why it should not apply in your case. If the authority is noncontrolling, ethical rules do not require you to cite it, but it is still poor practice not to do so. If you choose not to cite it, you give up the chance to explain why the adverse authority is wrong or distinguishable. And you risk having the judge think that you are trying to hide your head in the sand or mislead the court. Above all, do not assume that the adverse precedent will not be found by the court or the other side.

Recently, I considered an employment discrimination case in which the defendant moved to dismiss the complaint for failure to state a claim, rather than answering. The defendant argued that I should dismiss the complaint due to the plaintiff’s failure to attach his “right to sue” letter obtained from the Equal Employment Opportunity Commission after exhausting administrative remedies. The defendant contended that this failure “prevent[ed] this Court and Defendant from verifying whether his . . . claim is timely and/or related to the lawsuit.” In essence, the defendant argued that the plaintiff was required to attach the right to sue letter in order to show how he avoided a potential statute of limitations defense. For the proposition that the plaintiff was required to attach the right to sue letter, the defendant cited only a single case, a nonprecedential decision by another judge in my district. In doing so, the defendant ignored a legion of cases from the court of appeals in my circuit establishing that a plaintiff is not required to anticipate or “plead around” possible affirmative defenses. I rejected the defendant’s argument out of hand without even requiring a response. The defendant’s failure to acknowledge or apply the apparently contrary circuit-level authority cut off the opportunity to distinguish the authority or show why it should not apply in this context. This example shows, as I’ve indicated, how a lawyer has to be concerned that making one argument like this will cast doubt on his or her credibility or on the viability of his or her other arguments.


3. Be careful about making arguments that are at cross-purposes with other points you are trying to make. Sometimes lawyers make arguments that conflict directly, or are at cross-purposes, with other arguments they are making. I see lawyers do this on motions in limine in more than half of the jury trials over which I preside. It is also common in discovery disputes. For example, it is a relatively frequent occurrence for a lawyer in a civil police misconduct case to seek to admit at trial evidence of prior bad acts by the opposing party, while steadfastly opposing admission of other-act evidence relating to the lawyer’s own client. Often I see both sides take opposing positions on evidentiary issues like this, depending on which side’s ox is being gored.

I recognize, of course, that different considerations may apply on each side. But I am often surprised when each party’s submission on one side of the interrelated issues seems to pass its own submission on the other side like a ship in the night. Lawyers in this situation rarely even acknowledge the apparent inconsistency in their positions, let alone try to explain that there is no real inconsistency or that their dual positions are justified. Rather, I often get the impression that the lawyer either does not quite understand the inconsistency or, worse, is hoping no one, particularly the judge, will perceive it. Wrong.

A corollary of this rule: Do not use your limited time and space making arguments that largely serve to expose weaknesses in your own position. By way of example, I’ve experienced the following scenario more often than you might expect: Lawyer A moves to bar her opponent’s expert witness on the ground that the expert’s report was too cursory and did not comply with Federal Rule of Civil Procedure 26(a)(2)(B). I find the argument meritorious and grant the motion. This ruling is followed quickly by a similar motion filed by the opponent, arguing that Lawyer A’s expert’s report is equally deficient. Because Lawyer A persuaded me of the merit of her motion, she has boxed herself into a corner and finds her own expert barred on the same or similar grounds. Now, Lawyer A may have thought this all out in advance and believed that the trade-off, if she had to make it, would benefit her. But I think I can read lawyer reactions well enough to be pretty sure that in a lot of these cases, Lawyer A failed to analyze the adverse implications of her own arguments.

I can cite another recent example. Following the conclusion of a case, one side was petitioning for costs as the prevailing party, and the other side was filing a petition for attorney fees and costs arising from a series of earlier discovery disputes. Each side sought an order requiring the other to pay a significant amount of out-of-pocket expenses, but neither made any effort to provide support or detail. Then each side objected to the other side’s position on the ground that it lacked support. I ended up agreeing with both of them, and I rejected both petitions for costs on the ground that they were insufficiently supported. Perhaps neither side recognized the irony in its inconsistent positions, but as the decision maker, I certainly saw it. Each side’s argument for why its opponent’s petition should be rejected undercut its own argument for why its own petition should be granted. I had to wonder why neither side had gone to the trouble of supporting its opening position in the first place, or at least why the party that stood to lose more did not just choose to forgo the objection in order to avoid the blowback.


4. Don’t make an argument if you are unwilling or unable to develop it. If an argument is worth making, it is worth developing. This means explaining and supporting the argument in a way that makes logical sense, skips no steps in the reasoning, and leads the judge to see the merit in your position. Conversely, if you do not have the time or space to develop a point, or if you cannot develop it without exposing its weakness, leave it out. First of all, an undeveloped argument is likely to be considered waived or forfeited. Second, your job as an advocate is to help the judge arrive at the conclusion you want the judge to reach. You cannot do this effectively if you leave the reasoning behind your argument to the judge’s imagination. Give the judge enough to enable him or her to understand your argument or you won’t win the point.


5. Don’t make an argument that you cannot or are unwilling to support. This is more or less a corollary to rule of thumb number 4. Don’t include an argument if it is nothing more than a placeholder. Make sure that if called on a point, you can back it up. To cite a relatively mundane but common example, lawyers frequently ignore this seemingly obvious notion in objecting to discovery requests. They commonly assert a laundry list of objections, including undue burden. But when it comes time to argue the motion to compel, it is not unusual for a lawyer, when questioned about the basis for the burdensomeness claim, to display ignorance, and even a lack of inquiry, regarding the actual burden the discovery request imposes. This situation often arises in disputes about the scope of e-discovery. Again, when this happens you run the risk that the judge will infer that other points you have made are equally unsupportable. So don’t make an argument if you cannot withstand a judge’s searching questions.


6. Different considerations sometimes apply in criminal cases. Every point, of course, has a counterpoint. I may be running afoul of rule number 3 by writing this, but the general wisdom in leaving out lesser arguments does not always apply in quite the same way for a defendant in a criminal case as it does for a party in a civil case. For example, in capital cases, given the stakes involved, it is common and typically excusable for a defense lawyer to have a lower threshold for what arguments are advanced than the threshold that should apply in a civil case. Even in noncapital criminal cases, judges (even appellate judges) tend to give lawyers a bit more leeway in this regard than they would in civil cases. The consequences of waiver bite harder when your client’s liberty is at stake.

I’ll cite two examples. A number of years ago, a sentence that I imposed was overturned on appeal on the ground that I had erroneously departed from the then-mandatory Sentencing Guidelines. On remand, I imposed a within-Guidelines sentence. The defendant appealed again, lost, and then filed a petition for certiorari on a point that was nearly a dead-bang loser. I wondered about the wisdom of spending more time and money on this argument. Then, lo and behold, the Supreme Court concluded in another case that the Guidelines could not be imposed in a mandatory fashion, and that ruling was applied to those who had some sort of direct appeal still pending even if they had not challenged the Guidelines’ mandatory application. By virtue of having filed the petition for certiorari, the defendant in my case got a third crack at a sentencing hearing that would not have been available otherwise.

On the flip side, I recently presided over a multiple-defendant trial in which the defendants were acquitted on one charge and convicted on another related charge. One of the defendants filed a motion for acquittal on the remaining charge, which I ended up granting. Then, when I turned to the next defendant, who was arguably similarly situated, I discovered that he had not filed a similar motion and was now barred from doing so because the clock had run out, and there was no sure basis for a retroactive extension. Unlike the civil case in which a lawyer should omit weak arguments and concentrate on the strong ones, there was no downside for the criminal defendant in filing a motion for acquittal and thus no apparent strategic reason not to file one. But here no arguments had been made at all. The message: Don’t omit an argument at the risk of your client’s liberty.


7. Leave out the personal attacks and the hyperbole. This one applies in both civil and criminal cases. Limitation on time and space is yet one more reason to omit personal attacks on opposing counsel as well as hyperbolic characterizations of opposing counsel’s arguments. Not every weak argument is an outrage. These types of statements distract the judge from the merits, and they taint the rest of your presentation. The judge will likely read personal attacks or hyperbole as indicating that you do not have all that much of value to say about the merits. If your opponent has committed misconduct that really and truly bears on the issues to be decided, then this rule may not apply, but even then, keep your personal attacks to a minimum and focused on the merits. And understatement of your offense at your opponent’s position is nearly always better, and more persuasive, than overstatement. Let the facts and the law do the work.

Your job as an advocate is to help the court find a way to decide in your client’s favor. Peppering the court with weak or inconsequential arguments will not get the job done. You owe it to your client to focus on the significant points that have the greatest likelihood of carrying the day.

Hon. Matthew F. Kennelly

The author is a U.S. district judge in the Northern District of Illinois, Chicago.