I recall that about seven years ago, in a case which featured both tort and contract claims, I was reading an opponent’s brief with a sense of amazement. The case law and the legal principles seemed so bizarre and unexpected I had to wonder for a minute if I had completely misunderstood the case. Then I pulled out the Oregon State Bar Tort CLE book to check out some legal principles, and saw what was going on. Opposing counsel had opened the same book, picked a section, and simply cited every case listed on the page. Counsel had apparently written her argument and then plugged in some cases from the book. Didn’t matter that the cases had no relevance to our case, or that they didn’t actually say what counsel claimed, they filled out the page.
Not more than a couple months later, I was in oral argument for a summary judgment motion in a different case. Opposing counsel got up and spun what I admit was a very engrossing story, although regrettably, almost none of it was consistent with the facts on record in the case. I’d like to report that in both cases judges took note, got ticked off and threw down on these lawyers, but that did not happen. If the judges noticed or cared about getting bad facts or bad law, they kept it a well-hidden secret.
Every lawyer can tell similar tales of folks whose interpretation of "zealous advocacy" includes deviations from basic standards of intellectual honesty. I was thinking about these and other similar examples recently when I was talking with a colleague about giving coverage advice and running coverage or commercial litigation. When doing a coverage analysis, of course, there is no margin for fooling yourself, engaging in sloppy thinking or ripping pages from a CLE and pasting them in your opinion. A coverage opinion is not a piece of advocacy, it is a forthright evaluation of the client’s liability, and it is your own legal opinion, your best opinion. While often there is no absolute "right" answer, the analysis must be objective and do honor to the process of reason, not merely seek to tell the client what the lawyer thinks the client wants to hear. In the course of litigation, I sometimes come across coverage opinions that are alarmingly deviant from this model and indulge in partisan argument. I would no more consider writing a legal opinion like that than I would walk down the street juggling jars of nitroglycerin.
Litigation, whether it is coverage litigation or commercial litigation, has a different model from coverage analysis, but the same fundamental intellectual principles apply. To me, advocacy is most effective when it is tied to simplicity and honesty, so that the judge or jury can have faith that, even though you represent just one side of the argument, you are trying to be helpful in giving as complete an explanation and analysis of the law and facts as you can. That’s why in my briefs the section analyzing legal principles is not called "Argument," it is called "Discussion." Sure, there are examples like the two cases I mentioned where lawyers engaged in flagrant disregard for reality and didn’t pay an immediate price, but counting on luck or inattentive judges is extremely limiting. In the long run, analysis fulfills its potential and is at its most persuasive only when it remains disciplined. Paradoxically, you stand a much better chance of winning when it is apparent you won’t say anything to win.