“The Risk of the Kitchen Sink Approach” is a post at Raymond Ward’s the (new) legal writer blog about the necessity of trimming weak arguments so you can do your best presenting the good ones. I highly recommend both articles linked to in Mr. Ward’s post (that recommendation goes for his blog, too). They recognize the obstacles in identifying and excising weak arguments, with specific tips on how to overcome them.
One culprit, in the opinion of James McElhaney, is technology, which aggravates two other obstacles:
One of the easiest ways to obscure your theory of the case is to get caught in the word processor trap.
The ease of electronic editing has created the notion that you ought to write everything down first, no matter how jumbled. Just get it in the word processor. Then you can fix it and clean it and cut it later.
The first problem with this is the puritan ethic: Waste not, want not. Deleting entire sections of a brief seems wasteful, especially after you’ve taken all that time to edit and polish.
And then pride of authorship becomes a factor. So you end up keeping all that material you were going to trim, figuring it can’t hurt to leave it in.
But it does.
If you’re billing by the hour, it can also be difficult to explain to your client why the 10-page memorandum (that used to be 20 pages) took you so long, unless you’re willing not to bill the time spent on arguments that end up in the trash.
By far my worst experience with the “kitchen sink” approach was when I was in my third year or so of lawyering. I got in a big debate with a partner over a summary judgment motion. I thought our principal argument was very strong, and wanted to ditch several weak arguments. She insisted we keep them all, including one that relied on a multiple hearsay affidavit. (I had drafted it assuming we could get a non-hearsay affidavit in time, but it didn’t turn out that way.) She was the partner, so she won the debate.
When the tentative decision came out against us, she had me argue the motion. I got to listen to the judge berate me for submitting a multiple hearsay affidavit.
I’m not saying we would have won if she had listened to me, but . . . come on, multiple hearsay? What do you call the thing that you throw in after the kitchen sink?
One Comment
Pingback: