Sunday, March 14, 2010

Concentrate Your Fire; Guard Your Reputation

Making Your Case: The Art of Persuading Judges An unabridged reading by the authors on audio CDThis past week, I read Making Your Case by Justice Antonin Scalia and Bryan Garner. It contains plenty of helpful advice for attorneys and anyone seeking to master the art of persuasion. One particularly insightful piece of advice is to "concentrate your fire" by focusing on your best arguments. As the authors describe:
"On the surface, it might seem that a ten-point argument has been overanalyzed. In reality, it has been underanalyzed. Counsel has not taken the trouble to determine which arguments are strongest or endured the pain of eliminating those that are weakest."
P. 23. Sage advice for anyone seeking to make an argument, including in the employment law context.

Certainly, there will be times when it behooves counsel to cast a broad net. For example, plaintiffs certainly don't want to foreclose potentially viable claims by failing to assert them in the early going. Generally though, concise argument is a virtue.

This can be particularly challenging in the employment law context. Why? Because the employer and employee likely have a long history together. The employee can no doubt recount any number of petty slights or grievances. Similarly, the employer can likely identify even the most minor missteps along an employee's entire tenure. Often, though not always, such gripes will not advance either side's main point. Further, they may obfuscate stronger points.

Finally, attorneys in particular must take heed of the closing words of Making Your Case: "Argue not just for the day but for reputation." P. 206. A reputation as a "shotgunner," somebody who sprays their fire, is not something attorneys seek. As the book states, this "gives the impression of weakness and desperation." P. 22. A skilled persuader identifies the winning arguments and concentrates his or her fire where it counts.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.