You can hardly pick up a legal journal these days without seeing an article that provides advice on how to win your latest piece of litigation. That’s all well and good for those of you who win cases. But research shows that 50% of lawyers lose cases, and who is giving them advice on how to do that? Until now, no one. It is time to give the losers equal time, I say. I have served as an administrative law judge and arbitrator for more than 30 years, and in that time have seen lawyers use many reliable and creative ways to go down in flames. Here are my top ten.
- Argue with the judge after he or she has made a ruling. Really beat that dead horse. The judge is almost certain to admire your stubbornness as he rules against you on this point and any future arguments.
- While you are at it, argue your objections to opposing counsel, rather than the judge. Face opposing counsel directly and tell them in no uncertain terms why they are wrong. Giving the judge a break from listening to your analysis will be greatly appreciated. Although it is unlikely that opposing counsel will sustain your objection, give it a try. If that fails, you can make the argument directly to the judge, although doing so risks success.
- Make every specious argument you can. Argue facts that have no support in the record and make ridiculous legal arguments. Then sit back and watch as your credibility takes a nosedive. This way, when you actually have a solid point to make, the judge will be so used to your nonsense that he or she will probably miss the fact that you actually had something worthwhile to say.
- Don’t organize your exhibits or have sufficient copies for the court, opposing counsel or the witness. Take your sweet time between every question as you hunt down the document you wish to refer to. The judge will enjoy the opportunity to take short naps during these interludes.
- Don’t be prepared on the facts and law, and by all means don’t anticipate the other party’s evidence or argument. Allow yourself to be surprised.
- Be unwilling to stipulate to uncontested facts or reasonable procedural requests. Obfuscate and waste time as much as possible. The judge will be so frustrated by your obstreperous conduct that you have a good chance of throwing away any possibility of winning.
- Personally attack opposing counsel at every opportunity and blame opposing counsel for everything that goes wrong in your presentation. Be sure to remind the judge that every argument the opposition makes is specious and wholly without merit, even if you can’t really explain why that is. By adopting this unprofessional conduct you can further damage your credibility and be well on your way to losing the case.
- Berate and bully witnesses whenever possible. If a witness has difficulty recalling the minute details of events that occurred two years ago, it is especially helpful to your losing cause to accuse the witness of lying and to remind her of the penalties for perjury. Doing so is a clear signal to the judge that you really don’t have a case.
- Intentionally mischaracterize the holdings of relevant case law or the substance of applicable statutes in any written filing or oral argument. With any luck, the judge will read the cited authorities and your argument will lose all credibility and persuasive affect.
- Whenever possible, miss filing deadlines and make unconvincing arguments of why good cause exists to excuse your lax behavior. I once had counsel ask for relief from failing to file a motion on time because her cat died. She was a sure loser.
BONUS TIP: In any written or oral submission, be as long-winded as possible. Never say in five words what you can in 20. With any luck, the judge will get lost in your excess verbiage.
There are many other ways to lose a case, but these should get you on your way. Here’s wishing you bad luck.
By Marshall Snider, a former Colorado administrative law judge who works as an arbitrator and mediator. He may be reached at firstname.lastname@example.org.