Law school tries to teach you spin. Big Law tries to teach you to
make a ridiculous argument while keeping a straight face. It is done
by taking two disparate facts or terms or precedents, and combining
them to draw a desperate conclusion. In my line of work I am
confronted with this tactic every single day. My typical reaction is
that I am either so stupid that I am missing something or the other
side is just crazy. The truth of the matter is that neither conclusion
is true. I know better. The court knows better. For that matter, the
other side knows better. (I think). The other side is just
desperate to find a claim or defense. The problem is that under Rule
11 of the Federal Rules, and various state rules, this is probably
sanctionable conduct.
An example would be to argue and conclude with a sense of serious intent: I am nobody. Nobody is perfect. Therefore, I am perfect.
I think it is the old adage that, in court, if the law is on your side, pound the law. If the facts are on your side, pound the fact. If neither the facts or the law are on your side, pound the table. (Only, I saw were the latter happened recently in federal court in Houston only to have the marshals called in and the lawyer held in contempt).
I deal in what are very close to strict liability claims in which there are not that many defenses. Yet, every day I deal with attorneys that raise these types of arguments. To the degree that you are trying to find some leverage to settle, that is one thing. What I have never been able to understand, however, is why some attorneys push these conclusions to far (namely trial or through the summary judgment process). Their clients almost always gets burned when they do so.
Spin has its place, as long as you do not let it spin out of control. Do you really want to be the centrifuge of the legal community?
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