Given half the chance, your average law student will drone on and on about the law without ever saying anything helpful. Given less than half a chance, the average law professor will drone on and on about the law and only accidentally say something useful. I’ve been keeping track of these accidentally useful truths since I started law school and thought I’d
use them to skate by when I didn’t really have a good idea for a column this week share a few of my favorites.
1 “Attorneys are tired and under time pressure; this means they seldom read anything all the way through.” One of the earliest comments from my 1L legal writing professor and still arguably the most useful truth to keep in mind when engaging in any sort of legal writing project. Yes, it sucks to put a summary at the beginning and end of a brief and yes it’s a royal pain in the ass to break everything out into headings and sub-headings, but when you have an audience that only really has any detailed interest in a couple of paragraphs in a 25-page brief making it easy for them to get a quick summary and then zero in on just the two relevant paragraphs will make your readers love you.
2 “Relying on the incompetence of others is not a good strategy.” Sun-Tzu said that a person who makes light of his enemies is sure to be captured by them. If you assume that opposing counsel are unprepared, sooner or later they’ll take advantage of that and you’ll get to explain to your boss why. It’s not fun. I don’t recommend it.
3 “Either believe in the system or play the game that you believe in the system.” Hate the system all you like, but realize that revolutionary change just isn’t likely to happen. More gets done by pushing the boundaries from within than gets done by screaming from the outside.
4 “It’s an ineffective strategy to be a true believer in your case.” If you can’t see why you might fail, you will.
5 “Suppose that a court wrote an opinion saying elephants could fly. Would you put that in your notes?” Just because some court somewhere said it, doesn’t set it in stone. It doesn’t make it legally correct either.
6 “‘It’s just wrong’ doesn’t get you very far legally.” The gulf between what is legal and what is ethical is sometimes staggeringly wide and failing to remember this has led a lot of people to waste a lot of time and money on cases that have no hope of succeeding. Ultimately this is really just a subset of the true believer problem above, but it’s worth stating twice.
7 “Law is not the answer to everything and any answer we come up with is going to hurt someone.” Most of the law’s failures are humanity’s failures; no statute is going to make everyone honest or save every person and there are always going to be problems at the margins. The classic saying that “hard cases make bad law” should also be supplemented by “good intentions make bad law.”
My actual list of useful professorial aphorisms is much longer than this, of course, but it’s only sensible for me to hold a few back for the next time I’m completely out of column ideas.
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