If you’re a restaurateur, you never want to serve up a sub-standard plate of, say, meatballs and spaghetti.
In the legal industry, however, attorneys occasionally deliver a seemingly “bad” argument in hopes of gaining the strategic upper-hand.
Or so says attorney Jonathan Mermin in an entertaining essay on greenbag.org titled, fittingly enough, “Bad Arguments.” He puts forth several reasons lawyers will sometimes knowingly make arguments that they know are “bad.”
A “bad argument” might be defined as ones that rest on improbable interpretations of the law, dubious facts, and/or motions that have low odds of succeeding.
Consider the following:
If the gloves don’t fit, you must acquit. Possibly the most pithy and poetic “bad argument” in recent legal annals, a dramatic demonstration, even flawed, can have more impact than a dry recitation of facts.
Run it up a flagpole and see if anyone salutes. As an attorney, your have an obligation to “empty your gun” and fire all your “legal bullets.” And just as your best, impervious arguments can be shot down, you never know when your weakest arguments might prevail.
Hurl spaghetti against the wall and see if anything sticks. Similar to the “flagpole” approach, with one difference: the lawyer hopes that if he/she makes enough arguments, whatever their merits, perhaps the judge will “give him one” so as not to appear prejudicial against him.
You dance with the one that brung you. Or as former Defense Secretary Donald Rumsfeld once piquantly put it, “You go to war with the army you have.” With weak cases, “bad” arguments may be the only ones you have. To paraphrase the common “look at the sunny side” axiom, “when your client hands you legal lemons, make legal-ade.”
Alright, already! By quibbling over every motion, relevant or not, the lawyer establishes to the opposition that he’s in for the long, hard haul, making settling the case look a whole lot better than it otherwise might.
Could’a, would’a, should’a. Implausible as some scenarios may be, sometimes all it takes to prevail is to plant a fatal seed of doubt.
So are these tactics effective? Mermin believes they’re rarely worth it. They waste time, slow down proceedings, clog the courts, heighten conflict, reflect poorly on the participants, and may well backfire because the judge might give less credence to the attorney’s valid motions. Even in the instances where faulty-reasoned motions succeed, there’s a good chance they will be overturned on appeal.
In the end, he argues, arguments in favor of bad arguments, are themselves bad arguments.