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Litigation Journal

Summer 2021: Crisis

A Call for Some Punk in Our Advocacy

Scott Arnold


  • Many advocates are guilty of talking more than they should.
  • We should make shorter presentations and call less evidence.
  • Stripped-down, cleaned-up litigating means shorter, more productive motions, hearings, and trials.
A Call for Some Punk in Our Advocacy

Jump to:

The evening of March 30, 1974, changed music history. Four skinny dudes from Queens, New York, hit the stage together for the first time. With their quick, short, powerfully stripped-down songs, they effectively launched the incalculably influential punk rock genre.

The Ramones, and their electrifyingly fresh take on rock, did not come out of nowhere. Like all movements, it was a reaction to what had come before—a backlash against the perceived excesses of mushy, early 1970s rock. Meandering, over-produced, indulgently aimless solos, and songs played by musicians who often were not particularly talented, gave way to the punk revolution and its focus on brevity and purity. Years later, Tommy Ramone would describe the band’s philosophy as “Eliminate the unnecessary and focus on the substance.”

Five decades earlier, a group of architects in Germany were at the vanguard of another purity-embracing, ornament-rejecting, less-is-more insurrection. The Bauhaus School and its world-renowned directors were essential to the creation and advancement of modernist architecture—an epochal minimalist movement, similarly motivated by a rejection of the perceived decadence of the dominant styles of the day.

Both movements reflected perceptions that things had become overdone and diluted and that, as a result, practitioners had lost their punch.

Similarly, our courtroom methods are ripe for a rethinking. Routine and tranquilizing efforts at advocacy—long-winded, repetitive, and inefficient—can feel like an unavoidable, inherent part of the process.

But it need not be that way. Many advocates are guilty of talking more than they should. Not a little more—much more. They vastly under-edit, over-include, and over-present, thereby weakening their work and effect.

Mark Twain is credited with saying, “I didn’t have time to write a short letter, so I wrote a long one instead.” Surely, it takes more effort to pare things down and get to the point with meaning and force than it does to ramble.

How can we do it better?

First, make shorter presentations. The foundation of more potent and more persuasive arguments is a crystal-clear understanding of the points to be argued; an unwavering focus on the perspective of the reader or listener; and a dedication to tightening and wholesale slashing of anything that unnecessarily lengthens, repeats, distracts, or softens the focus.

Efficiency often grows when the space or time is tight. The outer limits of words, pages, or minutes should not be the guide. Speaking time and page counts should be dictated by the purpose. Make the arguments as effectively as possible. Once you’ve concisely and powerfully made your points, stop writing, stop talking. Sit down.

All of us think that we’re being reasonably efficient, that our drawn-out verbal routines are necessary. They’re not. Content always can be stated more clearly and briefly. Sometimes it can be cut altogether.

Here’s a way to start: Write down your five best arguments. How would you say, briefly, “We’re asking the court to find X for the following five reasons” and simply name them? Not all submissions will be that rapid-fire. But they could be. They would be better if they were.

Second, call less evidence. We include too much and prune too little. Presenting evidence must be done thoughtfully, not impulsively. Instead of asking why you wouldn’t present a particular piece of evidence, ask why you would. Evaluate each choice from the perspective of the decision maker. Press truly essential, core evidence. Ask whether, in light of it, secondary evidence has any real prospect of affecting the outcome. If not, leave it out.

Third, ask fewer questions. Give greater consideration to the actual purpose of each question. If, realistically, nothing can be gained, better to pass than to inquire. Sometimes the best strategy is to give the witness rope by getting the witness talking. But those times are rare.

Stripped-down, cleaned-up litigating also means shorter, more productive motions, hearings, and trials. As advocates, we should say all that is necessary, but only what truly is necessary. We should strive for significantly more persuasive value per minute of talking, value per piece of evidence presented, and value per question asked.

We should do it because more focused advocacy is more persuasive advocacy.