Bryan Garner: If your client’s case has bad facts, how can you present them in the best possible light?
Like everyone else, lawyers sometimes find themselves in extremis. A dire circumstance may call for an extreme argument—the classic last-ditch, desperate appeal. The ultimate test is whether the argument wins the day. Typically, the far-fetched argument doesn’t.
Sometimes lawyers almost knowingly abandon persuasiveness. Consider the defense of the infamous filmmaker Roman Polanski, who fled the U.S. in 1978 after pleading guilty to having sex with a 13-year-old girl. Some 40 years later, in 2017, a Los Angeles lawyer sought to persuade a Los Angeles County Superior Court judge to guarantee that his client would not serve jail time if he returned to the United States. He told the judge:
“Mr. Polanski was as justified in fleeing this court’s illegal conduct as he was to flee the Germans who invaded Poland.”
That’s not a statement intended to conciliate the listener.
Did it win? No. Judge Scott Gordon denied Polanski’s request to be sentenced in absentia and refused any assurance that he would not face jail time. Polanski has never returned to the U.S. and remains a fugitive today, avoiding extradition attempts.
Some examples of lavish advocacy sport self-defeating vocabulary. For instance, let’s say you’re representing the former Playboy playmate Anna Nicole Smith, who at 26 married an 89-year-old billionaire. In support of your client’s claim for half the $800 million estate, do you say the following?
“This is not about a gold digger sucking money.”
It’s surely unwise to use the terms gold digger and sucking—especially in succession. It doesn’t matter much if your next statement is “This is about a relationship that was very profound.” Your unforgettable dysphemisms will leave the court thinking that this is exactly what the case is about.
Anyway, that’s what Smith’s lawyer actually said.
When your client is accused of odious conduct, it’s unwise to repeat an unpleasant epithet in denial. Reframe the point instead. Don’t say, “My client isn’t a liar.” Say instead, if you can: “My client has been candid and honest.”
Don’t say, “She wasn’t a gold digger.” Insist that she was “a devoted wife who truly loved her husband.” And don’t talk about her “sucking money”; say, rather, that she “legitimately claims what she is entitled to.”
Some lawyers ill-advisedly take their extravagant arguments outside the courtroom. In 2007, for example, Paris Hilton came before a judge for driving her car in knowing violation of the terms of her probation for an earlier drunk-driving offense. After she was sentenced to 45 days in jail, her defense counsel told the press:
“I’m shocked. I’m surprised and really disheartened in the system that I’ve worked in for close to 40 years.”
That’s the kind of talk that undermines our legal system. Paris Hilton fans might have agreed—but nobody else. The lawyer’s words didn’t help his cause, and he risked being subjected to disciplinary proceedings.
Occasionally, some really weird arguments make their way into the U.S. Supreme Court. In the 1966 case of Mishkin v. New York, the appellant, Edward Mishkin, had been convicted of hiring people to prepare some 50 graphically obscene books, which Justice William Brennan described as depicting sadomasochistic fetishes involving women being “whipped, beaten, tortured or abused.” Mishkin’s counsel argued that these publications did not meet the standard of obscenity, which the Supreme Court had earlier defined as “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.”
In the opinion, Brennan noted an argument from Mishkin’s counsel, which was that his client’s materials didn’t appeal to “a prurient interest of the ‘average person’ in sex.”
“‘Instead of stimulating the erotic, they disgust and sicken,’” the opinion attributes to defense counsel.
That’s quite an argument. The Supreme Court rejected it, holding instead: “Where the material is designed for and primarily disseminated to a clearly defined deviant sexual group, rather than the public at large, the prurient-appeal requirement … is satisfied if the dominant theme of the material, taken as a whole, appeals to the prurient interest in sex of the members of that group.”
No bonus points even for the advocate’s brazenness in asserting his client’s publications, instead of being erotic, were utterly degenerate—in his words, sickening and disgusting. On the other hand, the lawyer was in extremis—and no other arguments were available.
Sometimes, however, what might seem specious at first blush ends up being sound. Consider Bennett v. State Farm, a 2013 case in the Cincinnati-based 6th U.S. Circuit court of Appeals in which the insurer called the appellant’s claim “ridiculous.” It certainly seemed so at a glance: In November 2010, Barbara Bennett was walking her dog along a road when she was struck by a Ford Fusion. She was thrown onto the Fusion’s hood, where she “sustained further bodily injuries.” Bennett then sued the driver’s insurer, State Farm, claiming insurance coverage.
After the typical pretrial skirmishes, the question boiled down to whether Bennett was an “occupant” of the Fusion. If so, she would be entitled to coverage for the injuries she sustained from the bumper and rolling on the hood; if not, then she would recover nothing.
If you asked a thousand people, all would probably say that she wasn’t an occupant because she wasn’t inside the car. The district court so held and granted summary judgment. Come on: She was hit by the Fusion and rolled across its hood. She wasn’t an occupant at all. What lawyer would have the temerity to argue that she was?
Apparently a very good one. The 6th Circuit held that she was indeed an occupant. And perhaps its opinion shows the age-old difference between appearance and reality, between media reporting and legal actualities.
State Farm had defined the term occupying as “in, on, entering or alighting from.” The litigants had stipulated that Bennett was on the Fusion—on its hood. Add two canons together—the interpretive-direction canon (contractual definitions are to be carefully adhered to) and contra proferentem (an insurance policy is to be construed against the insurer)—and the argument doesn’t seem extravagant at all. The outcome seems almost preordained.
So much for State Farm’s assertion that Bennett’s case was “ridiculous.”
What might at first seem implausible may in fact be rock solid. It’s a question of judgment and acceptability to the decision-maker. In the end, that’s what matters.
Lawyers are hired to advance with zeal the best arguments they can. We should remember the timeless words of Samuel Johnson, the 18th-century sage: “You do not know [an argument] to be good or bad till the judge determines it. … You are to state facts fairly. … An argument which does not convince yourself may convince the judge, … and if it does convince him, why then, sir, you are wrong, and he is right.”
Johnson went on to say that it’s the judge’s “business to judge; and you are not to be confident in your own opinion that a cause is bad, but to say all you can for your client, and then hear the judge’s opinion.” No seasoned advocate could call that argument bogus.
Bryan A. Garner. Photo by Karolyne H.C. Garner—
For suggesting examples cited in this column, Bryan A. Garner is grateful to Judge Michael B. Hyman, Paul J. Kiernan and Lord Pannick.
Bryan A. Garner, president of LawProse Inc., is the author of many books and the chief editor of Black’s Law Dictionary.
This column reflects the opinion of the author and not necessarily the views of the ABA Journal or the American Bar Association.
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