Another one bites the dust.
Golden Gobbledygook

The risk of the kitchen-sink approach

When we try to narrow down the issues and arguments in a brief, throwing out the weak ones and keeping the strong ones, we take a risk: the risk that we may be getting rid of something that would have persuaded the judge. So should we get rid of those weak issues and arguments?

Yes, we should, because the risk created by throwing them in is greater than that created by throwing them out. Kenneth Oettle says it better than I can:

Gamblers will continue to gamble even as their stakes dwindle as long as they receive intermittent, unpredictable payoffs. This is how slot machines work. Random payoffs keep the patrons pulling.

So it is with weak arguments. We have all won something with a weak argument, so we keep using them. We seem to think that persuading a judge is a matter of pushing buttons until we find the right one.

The right argument is, in a sense, a button — if you press it, you persuade. But weak arguments are buttons, too, and unlike the “Close Door” buttons on elevators, they are connected to something. At a minimum, weak arguments hurt your credibility and cast doubt on your belief in your case; they irritate the court because they lengthen the brief; and they may even insult the court’s intelligence.

James McElhaney says the same thing in a different way:

Are there risks in [discarding weak arguments]? You bet. Good legal writing is good writing. It’s also good lawyering. Good writing and good lawyering both involve taking risks.

That runs counter to our law school training, where we were rewarded with good grades for spotting and articulating every conceivable legal issue but were almost never expected to drop the ones that wouldn’t fly in the real world.

Nobody told us that failing to toss out the arguments that would not fly ultimately runs a bigger risk: creating a mishmash of legal theories that produces lumpy, sodden writing.


Greg May

I think an appellant has to have one, two, maybe three big reasons the lower court was wrong. There are exceptions, but for most cases, any more than that seems desperate.

A colleague of mine once said that you should approach an appeal as if the judges on the appellate court are lazy. They're not, of course, but act as if they are. That forces you to limit your brief to the most important arguments, write succinctly, and not get bogged down in a detailed, complex argument unless you can make it compelling.

In my opinion, though, it seems far less dangerous to "kitchen sink" the brief for respondent/appellee. I think the more reasons the court has to affirm, the better, and such reasons are rarely weak.

This approach also stems from something I learned from a colleague (who is also a former justice of the California Court of Appeal). He said that the court will generally try to look for a reason to affirm without reaching the merits. Only if there is no way to do that will it address issues on the merits. So I look for every one of those I can find. Sometimes, even the kitchen sink is a good argument.

I'll give this dichotomy some further thought after I read these articles.

I think McElhaney makes a good point that the habit of exhausting all the issues is a carry over from law school.

Greg May

When I was a very young lawyer, a partner insisted that I include an argument in a summary judgment motion that relied on a multiple hearsay declaration (double or triple hearsay, I can't remember which), among other arguments that I wanted to ditch. I kept telling her we shouldn't do it but, being the partner, she won that battle.

The motion was denied. I'm not saying it would have been granted if she listed to me, but . . . come on, an argument that relies on a multiple hearsay declaration? What do you call the item that you throw in after you throw in the kitchen sink?

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