• Rob Carty

Hurdles

Imagine you’re shopping for a car. You’ve narrowed it down to two competing models: the Mudbuster and the Fidelis. I’m selling the Fidelis. Here’s my pitch:

The Fidelis almost never breaks down. But even if it does, you still can’t beat its fuel economy. But even if it guzzles gas, the Fidelis has better styling than the Mudbuster. But even if you think the Fidelis is ugly, I’ll give you a huge discount.

This isn’t a sales pitch, it’s desperation. No one would use this technique.


Except lawyers.


I continually see briefs that follow this unpersuasive formula. They present an argument (often convincingly), only to deflate it when introducing the next argument. “My dog didn’t bite the plaintiff—but even if he did, he’s not my dog.”


Lawyers who write like this do no favors for their clients. Judges are beholden to the same human psychology as everyone else. They’re less likely to buy into a brief that says “And if you don’t believe that one, Judge, you should definitely believe this next thing I’m about to tell you.” Not only will your arguments seem less sure-footed, but readers may vaguely resent you for forcing them to parse through an argument that you yourself are willing to discard.


Happily, the fix is simple. Instead of introducing a new concept by dismissing the last one, present it as a separate hurdle that your opponent must overcome in addition to the previous one. For example, if a plaintiff can’t prove two of the elements comprising his claim, set them up as independent obstacles so that if he fails to clear even one of them, his entire claim fails. After showing that the plaintiff can’t satisfy Element 1, introduce your next argument this way: “Not only does Plaintiff lack any evidence for Element 1, but he can’t prove Element 2 either.” And go from there.


So simple. Each argument becomes a freestanding barrier. It’s a subtle but remarkably effective technique that doesn’t require much effort.


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