It’s time for another in our semi-regular series of questions posed to Marquette Law faculty: What’s your favorite legal quotation? I’ll go first. There are a number of quotations that I could choose from, from cases (“The common law is not a brooding omnipresence in the sky”), apocryphal anecdotes (“Your honor, ten dollars wouldn’t pay for half the contempt I have for this court!”), or law review articles (“There are two things wrong with almost all legal writing. One is its style. The other is its content.”).
But my favorite, the one I quote more often than any other to students, clients, and anyone else who will listen, is not attributable so far as I know to any particular source. I heard it first from a partner I worked for, but I have since run across it in multiple other venues. It’s about litigation in court, and it goes something like this:
The most rock-solid, knock-down, absolutely sure-fire legal argument you can imagine has about an 85% chance of success.
I like this quotation because it pithily illustrates the dangers of over-confidence in litigation. There are at least two ways an assessment of one’s chances of success can go wrong. First, an assessment of the strength of a legal argument tends to overlook the vagaries of the litigation process. The judge could be inept; or hide-bound to an idiosyncratic view of the law that drives him or her to the opposite result, despite the strength of your position; or simply make a mistake. The jury could misapply the law to the facts, despite optimal presentation on your part. The law is often hard to determine, but what this quotation is getting at is that there is more to predicting the outcome of a suit than just the law.
But there’s another source of error in determining one’s chances of success. As part of the process of psychologically steeling oneself to make forceful legal arguments will persuade others, lawyers tend to become overly enamored of those arguments, and delude themselves into thinking that their arguments really are “the most rock-solid, knock-down, absolutely sure-fire legal arguments” that can be imagined. This is why it is critical, as an attorney, to force yourself to imagine the strongest counter-arguments possible to your position; to mentally put yourself in the role of a critic, at least temporarily, and do your best to destroy the elaborate structure you just built. That is difficult to do well, however, and so it’s another source of the 15% failure rate.