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.
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.