Small Law Firms

Why Some Good Lawyers Make ‘Bad’ Arguments

Sometimes it pays to distract your adversaries, and this is why some attorneys make bad arguments.

By Jordan Rothman on May 15, 2019 4:16 pm

I am sure that all practicing attorneys have seen another lawyer advance bad arguments at one point or another during their careers.  Some arguments are bad because they completely misconstrue the law, and other arguments are bad since they are not supported by the facts.  In any case, at countless points in my career, I have observed adversaries advancing bad arguments, and there are a few reasons why good attorneys may make bad arguments during litigation

Bad Arguments Have a Slim Chance at Succeeding

Some attorneys take a “shotgun” approach to arguments, and devote time to both strong and weak points.  Oftentimes, attorneys do this in the hopes that one of their arguments will stick and convince a court to rule in their favor.  Indeed, I remember one time, my client was served with a nasty spoliation motion that I needed to do everything in my power to oppose.  I made six arguments in my opposition brief, and the last argument involved how my adversary had not sent me a sufficient “good-faith letter” trying to resolve the dispute before filing a motion.  My adversary had sent me such a letter after my initial responses, but not after I sent my amended responses.  Amazingly, the judge decided to deny my adversary’s motion because of this argument!  It makes sense that a court would decide a motion on the most limited grounds possible, and sometimes, a poor argument with a slim chance at success can actually make a difference.

Preserving Arguments for Appeal

As many attorneys already know, lawyers can usually only argue points on appeal that were argued before a lower court.  It is oftentimes important to include all conceivable arguments in your papers before a trial court, in case you might want to raise the issue on appeal.  I remember one time earlier in my career, I was tasked with arguing that a certain federal law pre-empted state law causes of action.  No court since the dawn of the Republic had held this to be true, and I did not understand why I was tasked with making this doomed argument.  The boss told me that an appellate court might be in a better place to change the law on this issue, but that we had to preserve our argument for appeal in the trial court by including the argument in our papers.

Later in my career, I was handling a case of first impression, and it was almost guaranteed that this case would be appealed, possibly to the state’s highest court.  I remembered the lesson I learned earlier in my career about preserving arguments, and I included every single argument I could think of in my papers.  I knew that someone with a lot more time and resources might be handling the appeal, and I didn’t know which points might be developed into a viable argument before the appellate court.  Years later, the case was eventually appealed, and I was happy that I did everything that I could to ensure my client’s success on appeal.  In any case, lawyers shouldn’t always judge their adversaries on the arguments they make before a trial court, since they could be setting themselves up if the case is taken to a different forum.

Lawyers Don’t Think You Will Catch Them

Sometimes, lawyers make bad arguments because they do not think that their adversaries will be swift enough to catch onto how horrible their points are.  Indeed, if attorneys are not caught making bad arguments, these points might be persuasive to a court.  For instance, I was once arguing in a lawsuit that my client’s contract did not contain sufficient consideration to be valid.  The opposing attorney tried to argue that my client ratified the contract by performing under it, and this seemed like a reasonable argument.  However, I researched the issue, and discovered that only voidable contracts can be ratified, not void contracts such as those not supported by consideration.  I ended up calling my adversary out on this argument, but this point could have made it past tons of lawyers.  In any case, sometimes good lawyers make bad arguments because they don’t expect they will be caught.

The “Chewbacca Defense”

If you thought that Elie Mystal and Joe Patrice were the only people at Above the Law who can make “South Park” references, you are sorely mistaken!  As many viewers of “South Park” already know, the “Chewbacca Defense” is when an attorney (such as Johnnie Cochran in the episode) makes a distracting, nonsensical argument to confuse a jury or judge into siding with them.  Sometimes, I have seen attorneys make drawn-out and downright weird arguments, which I could only surmise was aimed at confusing the court.

I remember once time, on a motion to dismiss, my adversary discussed the parole evidence rule and how a party could not be liable for the statements made by another party to a case.  After reviewing all case materials, it seemed like these legal concepts had no place in the motion.  However, I was so confused, I was left wondering if my opponent had done some kind of legal jiu-jitsu that could actually work.  In any case, sometimes it pays to distract your adversaries, and this is why some attorneys make bad arguments.

All told, every litigator has probably seen an adversary advance some bad arguments at one time or another.  However, sometimes making bad arguments promotes some other objective an attorney is trying to achieve.

Jordan Rothman is the Managing Attorney of The Rothman Law Firm, a New Jersey and New York litigation boutique. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at [email protected].