The Point of the Sword

Every opportunity to present — whether standing before a live audience or through a carefully written brief — is an opportunity to convince. Prioritizing and focusing the presentation carries more persuasive force than attempting to cover every arguable position. Fact patterns don’t always fall neatly within traditional legal theories, even when the opposing party unmistakably has engaged in conduct that cries out for some form of judicial relief, and the pursuit of justice can proceed down unpredictable paths when the presentation tries to cover too much ground. Just as a master swordsman knows that the point of the sword is a far more efficient killing tool than the length of the blade, the experienced advocate knows to press the strongest argument to advantage in lieu of presenting several alternatives in the hope that one may strike home.

Clients do not typically advise which legal theory to argue; they simply relate their version of the facts and trust the trial lawyer to provide proper advice regarding the ultimate likelihood of success. The conventional wisdom cautions against selecting among several legal theories as the process creates the possibility that a viable claim may be overlooked. The alternative to selection, following this rationale, is to present multiple claims or arguments, utilizing all available theories, based on the same set of facts. Since many lawyers operate from a position of fear of being criticized for failing to put forth an important argument, this strategy is often implemented. While minimizing the risk that a particular argument or theory may be missed, this conventional strategy unfortunately increases the likelihood that the strength of the best position will be diluted.