Mules Are Meant for Barns, Not Courtrooms
A lawyer's stubborn adherence to a no-win point is a sure way to lose favor with a judge.
June 28, 2015 at 09:14 PM
4 minute read
Stubbornness, at times, is a useful trait. In certain negotiations, for example, staking out a position and holding on to it can contribute to a successful outcome. Malleability, often a strength, can send a sign of weakness. Like most things, it all depends upon the circumstances.
But more often than not, lawyers who inflexibly hew to a position rather than consider alternatives do themselves harm. When the sands are shifting around you, staying rooted in place can be dangerous or fatal. Better to adapt to changing circumstances. Better still to pick your battles carefully rather than shout from the ramparts over each and every provocation, real or imagined.
In oral argument, sometimes lawyers are so intent on protecting their position that they wade into trouble for no reason at all. This phenomenon routinely occurs when a lawyer fails or refuses to concede a point which needs to be conceded, or argues over something that doesn't matter. Arguing over what is incontestable is a serious tactical blunder — and it should be avoided.
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