As some of you know, I will be a lawyer later this year. I’ve had experience in the courts and seen some long briefs and heard long arguments. IMHO, judges and especially juries don’t want to hear the kitchen sink type of argument. I’m listening to Jodi Arias’ lawyer telling the jury that a mitigating factor in her case is that she was a “good friend” to some people.
Well, fuck me. I’m sure that Charles Manson was a good friend to some people. If I’m sitting on a jury, I’m laughing at that. If I am a judge, I am not reading page 35 of your brief talking about your hail mary argument.
Shouldn’t lawyers just focus and keep hammering on the strongest argument? And then make it as short, concise, and precise as possible?
Brevity in writing is important, or maybe to be more exact, concision is important. You want your brief to to be exactly as long as it needs to be, and no longer. Sometimes that’s 5 pages and sometimes it’s 50, but the idea is to get your point across in direct language, not to impress the reader with your dazzling verbiage and encyclopedic command of the law.
The “long as it needs to be and no longer” rule carries over to oral arguments, too. Of course, that assumes you have one or two good arguments to hammer on. If all the attorney has is a bunch of little bad arguments, they may make every one of them in a “spaghetti on the wall” argument in the hopes that something will stick. This is a strategy sometimes used by the party without the burden of proof, because they don’t have to necessarily prove their argument or even disprove the other side. All they have to do is make enough of a doubt in at least one of the jurors minds to get a hung jury (or maybe more than one if unanimity isn’t required). Sometimes this can result in a deliberate attempt to create confusion over the issues, a practice some lawyers disparagingly refer to as “muddying the waters.”
In law school, we were taught to be concise, and as a practical matter, many courts will impose a page limit on submissions. (Disclaimer: IANALitigator.) But I think out in the real world, a lot of lawyers have this almost neurotic cautious urge to cover all of the bases. That will lead to brief/argument/etc. bloat. And there’s also a certain inertia: if your boss has done it that way for the last 30 years, and is not interested in your arguments about the marvels of brevity, what can you do?
I agree that he doesn’t have the best facts to work with. But I think if I were him, I would concentrate on how unhinged she is. I would keep showing the video of her doing the handstand and asking to primp before her booking photo. Ladies and Gentlemen, this woman is sick and immature; detached from reality; this woman needs help. Putting her to death would be like putting a wayward child to death. We can get her some help in prison and she can be productive and help others with similar problems.
Something along those lines. Telling jurors that she was a good friend to one other person seems silly. I would think that a juror would discredit everything else he has to say when he makes such an obvious reach.
And that’s sort of the point of my OP. Let’s say I have 8 possible arguments. Two strong. Six mediocre. And two I almost have to laugh at them when I say them they are so ridiculous.
I would hammer my strong 2 and put the other 6 under the same general heading. I would throw the weak 2 in the garbage. My even mentioning the weak 2, I would lose credibility with the judge or jury who would (IMO) be likely to disregard my two good arguments.
It’s all about billing. Pleadings are sometimes limited by the judge, but if not, anything goes, and every page can pad a bill, even if the argument can be made in three paragraphs.
Even worse is correspondence. Sure, you could write a letter enclosing a document, but then you could only bill .10 of an hour. Write a letter enclosing the document, describing the document, thanking opposing counsel for their courtesy, etc., all in flowery language, and you’re up to .4 or .5 of an hour. All those tenths add up to a big bill at the end of the month.
Yes.
Except - if you omit some arguments you risk a later allegation of incompetence. Also it can happen that what you think is a weak point actually rings a bell with the judge or jury. So unfortunately the kitchen sink approach is adopted for safety by many lawyers.
Clear and concise and then confidently end the argument. If you get a rebuttal, mention that they raised one new point worth addressing, then address it. Or two. You do not have to address weak arguments. Show confidence in yourself and in the person or persons deciding. Show real confidence in the decidererers. Do not bore them. They are waiting for an opportunity to tune the long winded out. Let your opponents do that for you.
Back in the day when giving fine oratory was what people did for entertainment, the best speaker in the country was a fellow named Edward Everett. He gave one of the best addresses ever given and held his audience spellbound for two hours. Then some country bumpkin gave a two and half minute speech and blew him away, hitting all the points. The place was Gettysburg, and Lincoln was the country bumpkin.
Now, Everett could not have given such a short speech, as he was expected to entertain the crowd for a while, but he knew that the lawyer had hit all the points and gave a speech that would be remembered forever, and that his own two hour speech would soon be forgotten.
How did Lincoln do it? He knew what he wanted to say, said it and sat down. He had read the classics and liberally borrowed from them (hint, see Pericles funeral oration). Trust your audience. Also note that Lincoln had been waiting for an opportunity to say these things for some time and adapted them to a cemetery consecration.
Some of my most effective oral arguments have been “nothing to add, your honor.” Some of my best appellate briefs are less than 10 pages. Prepare, say it clearly and trust your audience.
Not a lawyer, but remembering a citation from the decision in the 64 million pants lawsuit, the District Court stated it is possible to overplead your case, etc.
…This case is a classic example of a plaintiff pleading himself out of court by alleging a host of facts that only serve to totally undercut his claims. See Trudeau v. FTC, 456 F.3d 178, 193 (D.C.Cir.2006) (noting that it “is possible for a plaintiff to plead too much: that is, to plead himself out of court by alleging facts that render success on the merits impossible”) (quoting Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1116 (D.C.Cir.2000)…
I get the idea that Jodi is doing things against her defense lawyers wishes, something HLN news also suggested. Not just doing media interviews but driving the whole theme of the defense. For the penalty phase:
Good argument: I admit what I did was wrong and am sorry for it, I plead for you as good people to show me the mercy I didn’t show Travis.
What Jodi wants to say: You should let me live because I’m a good artist and Travis was a pedophile.
Anyone want to speculate on how things would have been different if Jodi had said “shut up I want my lawyer” at the first question the cops asked her, followed her lawyers advice, and didn’t keep doing media interviews?
The prosecution does seem to be doing a good job in closing, but they took way too long hammering home every tiny point in the middle. OK, we get it she’s a liar, now lets move on to the details of the actual murder.
