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Lawyers Shouldn't Pretend They Are True Believers Of All Their Arguments

Numerous lawyers in practice pretend that they are true believers of some silly arguments. Why use this tactic?

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“Therefore, if Chewbacca lives on Endor, which I truly believe to be the case …”

Attorneys often need to present points that might seem silly or misguided. In certain instances, lawyers do not have any solid arguments so they just need to present any point that they can under the circumstances. Other times, lawyers need to argue points to secure certain advantages and not give an inch during negotiations. Some lawyers think that good advocacy requires them to seem as if they wholeheartedly believe in the merit of their arguments. However, lawyers should not pretend to be true believers of their arguments in certain circumstances since showing that you are just doing your job by presenting the arguments you may not believe can improve a lawyer’s credibility.

I remember the first time in my career when I had to present a silly argument. I was representing two parties that had both signed releases. In the notice of motion about the release, my adversary put the word “defendant’s” rather than “defendants’” so an argument could be made that the motion only involved one of my clients and not both of them.

Of course, this was almost certainly just a typo on my adversary’s part, and I am sure that all lawyers have seen similar errors in papers that have crossed their desks over the years. However, to be a good advocate, I argued to the court that because of my adversary’s purportedly defective notice of motion, the motion should be denied against my clients. Nevertheless, I made sure to convey using body language and verbal cues that I knew the argument was kind of silly, but that I was just presenting it to be a good advocate. I could see that the judge understood my position, and I had other arguments that were also evaluated by the judge on that motion which might have been undermined if the judge thought I truly believed in a silly argument.

However, I see numerous lawyers in practice pretend that they are true believers in some silly arguments, and I do not really understand this tactic. Maybe lawyers think that their points will be more forceful if it looks like they are being expressed from a position of true belief rather than zealous advocacy. In some instances, presenting such arguments can backfire and cause a lawyer to lose more ground than the lawyer would have if he or she signaled that arguments were just being presented for the purpose of advocacy.

Earlier in my career, I represented a client who resided thousands of miles from the forum where a lawsuit was filed. Despite the distance to the forum and other circumstances, my adversary insisted that my client come to the forum to be deposed personally in the case. Of course, virtual depositions have been around for a long time, so there was no good reason why we could not just hold the deposition virtually. However, I suspect that the other lawyer just wanted to annoy my client, hoping that the threat of traveling all the way to the forum would impact my client’s decision to settle the case.

We ended up conferencing the issue with the court, and the lawyer went into a passionate, and somewhat obstinate, presentation of why the deposition should be held in person in the forum where the case was filed. This attorney did not really present any good reason against a virtual deposition other than it being more difficult to present exhibits during such depositions.

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The court seemed kind of upset that this attorney would not just agree to a virtual deposition given how much easier this process was and ordered that depositions occur virtually. Then, the court denied pretty much all of the requests this attorney made. Had this lawyer just signaled that he was presenting the arguments about in-person depositions to be a zealous advocate and that he really did not believe that they were justified in the case, he might have saved his credibility and gotten better results for his client.

All of us know that everyone deserves a defense, and this concept requires us to separate attorneys representing clients from the clients themselves. However, many lawyers still feel the need to pretend to be true believers of their positions, even though there is an assumption that lawyers do not need to agree with their clients. Of course, how an attorney presents arguments varies greatly from circumstance to circumstance, and advocacy before a jury, judge, or other subject might require the attorney to change his or her behavior. However, it is usually best to use verbal or nonverbal cues to signal that an attorney is merely presenting an argument to be a good advocate and is not a true believer of a silly position. This helps preserve the lawyer’s credibility, which can assist the attorney in securing the most advantages for clients.

Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. 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 jordan@rothmanlawyer.com.

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