[Editor’s Note: This month faculty members share their favorite brief writing or oral argument tip. This is the fourth entry in the series.] My favorite advocacy tip applies to briefs and oral arguments alike. (Indeed, for my money it serves as a pretty good rule of thumb for life in general.) It is this: Your arguments are never as good as you think they are.
As a general matter, the phenomenon is a product of (or is at the very least related to) what psychologists call the confirmation bias. That’s our tendency to assimilate new information in such a way as to confirm our pre-existing beliefs. If I’m inclined to believe in the truth of Proposition X, then I will give relatively greater weight to new information that confirms that belief than to information that runs contrary to it.
It’s entirely natural for lawyers to identify with their client’s interests and perspective. When your job is to advance the most effective arguments you can on your client’s behalf, it becomes your business to appreciate where they are coming from. And as you start to do that, you are likely to become less effective at seeing where the other side is coming from.
Imagine you’re confronted with what at the outset appears to be a body of case law that is not clearly consistent, or is inconsistent, with the position you hope to advance. For you it’s a puzzle. You need to move the pieces around and to reorient the cases, emphasizing some of the themes and language in the opinions over the rest. Ultimately, you formulate an analysis in which everything points in a single direction: you win. In your mind, you will have offered the court the solution to the puzzle. In reality, you are much more likely to have provided a solution to the puzzle.
We do this all the time, as humans, as lawyers, and even as judges (ever notice how opinions consistently read as though there is but a single answer to the questions presented, even over a strenuous dissent?).
So what do we do about it? Clichéd as it may be to say it, recognizing the phenomenon is the first step to countering it. At that point, for me, it becomes about efforts to introduce distance and perspective. Setting a brief aside for a couple days or more seems best, though it’s not always possible. Other tricks involve re-reading it in a different place or in a different font. Reading aloud can help to uncover flaws in logic as well as linguistic inelegancies. The point, ultimately, is to read the words critically, and as though they are not my own. If I can manage that, then I will have a better chance of seeing the flaws that weren’t apparent to me the first time through.