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The Key To Consistency Is Caring, But Accuracy Still Reigns

Being accurate is still the most important thing you can do as an attorney.

By Brian Grossman  
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Many people use accuracy and precision interchangeably but the two are very much different. While being precise and consistent are one in the same, accuracy is entirely different. 

Accuracy vs. Precision

While I’m sure most, if not all, of you know the difference between accuracy and precision, I think a quick reminder may help. Accuracy is the ability to get something right (think hitting a bullseye on a target), while precision is, for lack of a better word, consistency (think hitting the same place on a target over and over again). Now that that’s out of the way, let’s get to what I mean here.

Consistency is Key to Everything in Law

Think about what would happen if J.K. Rowling had changed Harry Potter’s name to Ed Pickledelly before the fourth book in the series. No one, and I mean no one, would have bought Ed Pickledelly and the Goblet of Fire, even though it would have been the same exact book otherwise. And even if an unsuspecting Harry Potter fan found their way to Ed Pickledelly and the Goblet of Fire, they would be so confused as to why this Ed guy was hanging out with all their favorite wizards (and wondering what happened to Harry) that they wouldn’t be able to enjoy the book.

The same is true for law. Your case is a series, and your audience is the judge. You need to be consistent in everything you do from defining terms in briefs, to arguments that you make, and even in what you tell your clients.

When thinking of consistency and precision, I like to consider my golf game: I am a consistently and (oddly enough) precisely awful golfer. But I am so consistent and precise that I know where my ball will go, even though I don’t mean for it to go there. As such, I always aim way (and I truly do mean way) left so that I can hope for the ball to land in the fairway.

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If you change things with no rhyme or reason, people — including judges, clerks, adversaries (but who really cares about them), clients, and more — will be confused. That’s why, at our firm, we do multiple checks with multiple people, including those with no knowledge of the case whatsoever, to ensure that everything is consistent and makes sense.

Accuracy Still Reigns Supreme

However, the only thing that trumps being consistent is being accurate. In law, this means that if there’s an argument that you consistently made that is no longer fruitful, you need to NOT be consistent and instead be accurate. This can come in many different forms: dropping a claim; adjusting a claim as necessary so that it is accurate (so long as it remains in the confines of your complaint); or even outright admitting what happened. Just remember the coverup is always worse than the mistake (just as Nixon), so it’s important to always own it and correct the record as necessary.

Back to Harry Potter (because we’ve already come this far and I want to be consistent with my ridiculous examples): if it turned out that Harry Potter was actually a biography and Harry was not actually a wizard but rather a member of the (in this universe not fictional) X-Men, which explained all of his powers, J.K. Rowling would need to correct that in her book. Now obviously Harry Potter is fiction so this does not apply but I think everyone reading this understands what I mean.

Similarly, in law, if you realize that something is not right, it is your duty as an officer of the court to make that correction. However, even if you are not the most ethical person (which I hope you all are), it just makes sense to correct the record as it will come back to bite you (see e.g., supra re: Nixon) at some point, whether it be through a judge’s clerk that discovers something does not add up, a witness on the stand, or an adversary, it will be caught. So whether you are like my colleagues and I who like to ensure everything is as accurate as possible on the record, or Michael Cohen and willing to lie when it suits you, for the sake of your client’s case, you need to ensure that everything is accurate.

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Back to my golf game (for consistency purposes). Even if I could accurately drive the ball toward the green, that is not always the best route. If there’s dog leg (for those who do not know golf, a hole that bends) it would make little sense for me to aim towards the hole, but rather I should aim in a slightly different direction and then on my second shot (hopefully) I can aim toward the hole.

I do not mean that you should aim askew; what I do mean is that sometimes things are not a straight a line and when you realize you need to correct your trajectory, you need to do so.

While being consistent is important for advocacy, being accurate is still the most important thing you can do as an attorney.

brian-grossmanBrian Grossman was an attorney at Balestriere Fariello, a trial and investigations law firm which represents clients in all aspects of complex commercial litigation and arbitration from pre-filing investigations to trial and appeals. You can reach firm partner John Balestriere at john.g.balestriere@balestrierefariello.com.

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