As many people are aware, Biglaw firms typically charge insanely high rates for their services. One of the reasons why Biglaw firms are paid so much is because clients can trust that attorneys at Biglaw firms will advance every argument that can be made on their behalf. And it is true that most of the time, Biglaw attorneys are worth their fees, and clients can rest assured that their Biglaw attorneys are arguing the best points on behalf of their clients.
However, Biglaw attorneys also have a tendency to make pretty weird arguments from time to time. One reason for this is since it can be hard for Biglaw firms to justify insanely high fees. Biglaw attorneys sometimes also make unusual arguments in order to demonstrate to their clients that they are creative and are thinking of points that other firms might have overlooked. However, in certain instances, advancing weird arguments does not really serve the client’s interests, and is mostly a waste of time.
My time as a practicing attorney has shown me that a lawyer’s ability to achieve success for a client is mostly preordained by the facts of a case and the law that already exists on a legal matter. Indeed, I have seen the crappiest solo practitioners beat the biggest and best law firms simply because the law and facts were on their side. There is, of course, some leeway in most matters, and many Biglaw firms “make their money” by advancing arguments regarding contested areas of the law and facts. However, Biglaw firms overreach sometimes when trying to make up for issues with the law or facts of a case.
As an attorney in Biglaw, I vividly remember two instances in which I was tasked with researching weird arguments that had almost no chance of succeeding. Right after starting my Biglaw gig, the “brass” at my firm asked me to draft a memo arguing that a certain federal law preempted state law causes of action. While researching this issue, I found that this federal law had existed for centuries, and no court since virtually the dawn of the Republic had ever found that this law preempted state causes of action. Of course, it would have been great if this law did preempt other causes of action, since we felt that the claim based on this federal law was not viable. However, we had little to stand on when making this argument.
Of course, I did what any good Biglaw associate would do, and I made an argument for preemption that passed the “laugh test.” I went back to general principles underlying the law and made an extremely broad argument. In the end, this argument was not successful, and it was a huge waste of time for us to spend resources researching this point.
Another time, I was tasked with making an argument that a certain law was subject to a statute of repose rather than a statute of limitations. The only problem was that the law courts used when assigning a statute of limitations to the relevant law literally said “statute of limitations” in the text of the law! Again, no court had ever held that the law in question was subject to a statute of repose rather than a statute of limitations.
We were trying to make this argument since the claim at issue would not stand if a statute of repose applied rather than a statute of limitations. However, it was difficult to make this argument, and I had my work cut out for me when following my marching orders.

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I once asked my boss why we made unusual arguments, and he told me two main reasons. First, my bosses oftentimes liked to “shotgun” arguments in some legal papers in the hopes that one of a variety of points will compel a court to side in our favor. The only problem with this theory is that courts typically like to resolve cases on the narrowest grounds possible. I have been successful “shotgunning” and arguing that opposing counsel had not complied with technical procedures like a good-faith affidavit requirement. However, I have never seen “shotgunning” work with arguments that would completely upset well-settled law surrounding an issue.
The other reason my Biglaw boss told me why we made unusual arguments was to preserve our points for appeal. I completely understand this, and you oftentimes get more time and resources to think about an issue on appeal than you do at the trial level in certain circumstances. Of course, if you don’t preserve an argument for appeal in your underlying papers, you might lose the ability to advance a given point on appeal. However, it is still not worth it to preserve doomed arguments for appeal, and I never understood why resources were wasted for this purpose.
When I worked at smaller law firms, we usually did not make weird arguments. We didn’t have the time to waste developing unusual points, and we did not need to prove anything to our clients. However, Biglaw attorneys tend to make weird arguments, either to justify their high rates or convince a client that they are better than other shops. Nevertheless, in most instances, there is no reason to waste time and resources developing doomed arguments in order to try and impress a client.
Jordan Rothman is the founder of Student Debt Diaries, a personal finance website discussing how he paid off all $197,890.20 of his college and law school student loans over 46 months of his late 20s. You can reach him at [email protected].