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Self-Control: Controlling the Issue Controls the Result

Hon. David J. Schenck

Self-Control: Controlling the Issue Controls the Result
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As zealous advocates, we all want the best for our client—and as efficiently as possible. Winning the case is an obvious objective. The “when” and the “how” of winning are often more elusive. Justice Scalia once observed, “A mediocre advocate defending a good position will beat an excellent advocate defending a bad position nine times out of ten.” Good lawyers aren’t snowplows, driving before them every issue their minds might imagine with equal force and fury until the sheer weight of them exhausts the opposition, the judge, or the client’s resources. Mindful of the fear of being second-guessed, litigators too often blanket the landscape with motions, objections, and arguments that will never be cited or even remembered when the case finally comes to rest. Likewise, lawyers, even good lawyers, will sometimes give in to the temptation to raise an interesting issue where a simpler attack on other grounds might work as well or better. Often bringing both seems like the safe course, but doing so risks the simpler issue getting lost in the excitement or intrigue of bigger issues as judges rise to join you in your challenge.

But a really good lawyer is laser-focused on who bears the burden of persuasion and exercising the initiative. For example, if you represent the defendant at trial, focusing on the one or two legal issues where the plaintiff is most likely to lose is a much more efficient way to win than trying to engage on every front imaginable. Likewise, if you represent the appellant on appeal, your job is to win once: finding the issue, and posing the question, that results in reversal. Adding arguments might be prudent but will add complexity and increase the prospects that a court will take the easier way out. Making the decision (with an informed client) to leave an issue or argument on the cutting room floor is hard, and isn’t always the right call, but exercising the discipline to control yourself and pursue the best issue often will yield the better result and answer.