You’re Not Cooking Spaghetti

Did your mother tested if pasta was done by throwing it against the wall to see if it sticks. Mine did. Some lawyers write briefs the same way because “you never know what will appeal to the judge.” However, that is precisely what clients pay us attorneys to figure out. Throwing every conceivable argument at a judge usually ends up with nothing sticking. The correct course is to do the job at hand and make the best argument that can be made, not every argument that can be made.

So, what should an attorney do when the client insists on an argument that counsel judges weak and better left behind? Make it as strong as possible and place it where it does the least damage by distracting the judge from better arguments. In this, the familiar principle of primacy and recency is your best friend: What comes first and last in an argument is most retained by the reader. Put weaker arguments in the middle.