When to Make a Bad Argument
Is there ever a time when a lawyer should make a bad argument?
Sure, when there is no good argument to make. Seriously, it is practically the definition of "advocacy" to take on a cause against all odds.
But really seriously, there are times when you have to make bad arguments. And because we're lawyers, we can actually make that argument.
Trick of the Trade
As a starting point, consider the obvservations of Jonathan Mermin in his journal article on the subject. It's like putting lipstick on a pig, he says, but lawyers are better at hiding their flaws.
"A bad argument is not evidence of a bad lawyer," he writes. "On the contrary, one trick of the trade is taking an argument that has no actual merit and making it sound like there could be something to it."
In practice, lawyers do it all the time. Here are a few from a much longer list of fallacious arguments:
- Ad hominem
- Straw man
- Slippery slope
If you have seen these before, that's because it takes one to know one. See how that works?
In the Alternative
Sometimes, bad arguments will win where they have no business winning. "If it does not fit, you must acquit," said Johnnie Cochran, but not sure that helps his case now.
In any case, it is not always a good time to make a bad argument. Unless you can do it with style, judges and bar prosecutors are not really fans.
The better course they teach in law school is: "If your facts are bad, argue the law. If the law is not on your side, argue the facts."
It's not exactly the Socratic method, but it's at least a decent argument.
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