Too often, litigation disputes are like two ships passing in the night. The first salvo describes in great detail the relevant facts and applicable law. The opponent’s response then covers the very same ground, emphasizing the facts and law that are favourable to it – often with very little to no references to the opponent’s points of view.
Our goal as advocates is to advance our client’s case as effectively as possible. Unlike advocates, though, a judge’s job is to balance the different points of view to reach the best result. The judge needs help to decide who is right and wrong.
Candor is an extremely useful advocacy tool that is too frequently underutilized. Don’t be afraid to tell a judge that a case involves difficult legal issues, or controversial factual questions. Recognize your opponent’s valid concerns. By dealing with these difficult questions head-on, you are implicitly telling the judge: “I am an advocate, but I want to help you. Some of these questions are indeed difficult, but my proposed resolution on behalf of my clients is the best solution.”
This familiar admonition sounds pretty simple in theory. Yet there are still so many litigators that are hard-wired to fight about every issue that it is a drastically underutilized tool in practice.