I used to workout with a lawyer I practiced with named “Andy”. One day we were on a ten-mile run when Andy asked me what I thought of our recently launched invasion of Afghanistan (shows you how long ago this was). Andy interrupted my answer almost immediately with a question that made it clear that he disagreed with me, which initiated an argument between us that lasted for about nine miles. At times it got pretty hot, but we managed to part amicably, as we always did when we argued—and we argued a lot.
A couple of days later I came up behind Andy in the break room at our firm and heard him talking to another lawyer about the same topic and forcefully making the very argument I had made to him during our run, the one he had adamantly disagreed with me about for nine miles.
“Hey!” I said to Andy. “I thought you totally disagreed with me on that?”
“What gave you that idea?” He responded.
“You did. You argued with me about it for an hour and half.”
“Sure, but that doesn’t mean I disagreed with your position.”
“Then why did you argue with me about it?” I asked, perplexed.
“To learn. I argue to learn. How do you learn?”
Argument is the forceful juxtaposition of opposing views
The same way actually, although probably not with the same degree of vigorous adoption of the opposing viewpoint of which Andy is capable. But, like him, I do argue to learn. And by Argument, I don’t mean petty squabbling but rather good-faith engagement in the forceful juxtaposition of opposing views. Some people would call that debate I suppose, but to me it’s Argument and doing it well is an absolute must for a Litigator to be Missional.
I love to Argue and always have. I’ll Argue the color of the sky and give the other guy blue to make it fair. Being hardwired that way makes it a lot easier for me to be a Litigator as so much of the job involves Argument. Which is one of the reasons I feel sorry for my AdCon-adverse colleagues like Dan. Arguing clearly makes them miserable.
Which is probably one of the reasons that they avoid doing it. Every time Dan would suggest a walk-away to me, I would ask him the same question: “why?” Why should my CL accept that? Persuade me. He would try, a little, and (of course) I would Argue with him and he would sigh and repeat his dream of finding that utopian “better way” to resolve Disputes.
Judges rely on the Arguments of counsel to make the right decision
I once made a motion for partial summary judgment in front of a judge who was widely viewed as mild-mannered. After I had made my Argument, my OC (“Lance”) told the judge that he had no Argument in response.
“Then why don’t you just consent to the motion?” The judge asked.
“I don’t have authority to do that your honor.” Lance responded.
“Then why don’t you make an argument in opposition?”
“Well, I don’t really have one.”
“So,” the judge said, his color rising, “your plan is to let me grant summary judgment so that you can take it to the court of appeals and see if you can come up with something there to get me reversed?” Clearly, that had been Lance’s intention because he didn’t say anything in response to the judge’s accusation.
“You’re not even going to give me a chance to get it right! Is that it counsel?” Surprisingly, the judge was mad as hell. I had never seen him that way before.
“Well counsel, I’m not going to do it! Mr. Redding,” he said, looking at me, “you’re going to have to re-notice your motion so that your colleague here has the opportunity to prepare an argument.” With that, the judge left the courtroom.
In the embarrassed silence he left behind, Lance turned to me and said, “well that didn’t go very well, but I don’t think the judge can make me argue.”
“I guess not,” I said, “but it looks like you better try anyway.”
It was revealing to me that Lance had to be forced by the judge to Argue. For my friend Andy that would not have been necessary. With him, it was far more likely that the judge would have to force him to stop Arguing. Andy had a problem with that.
That hearing was revealing to me in another way. I think I had been practicing for about five years at the time and it had never occurred to me that judges relied upon the opposing Arguments of counsel to reach the right decision. I knew that we were supposed to Argue our side, but I didn’t realize that we were Arguing for the judges to learn.
A Litigator is an Arguer by nature
I have had several cases with Lance over the years and think he’s a pretty good lawyer, but he’s really not much of an Arguer. I don’t mean that he’s not good at it, just that he is not an Arguer by nature like Andy. If there is a way for Lance to avoid an Argument he will take that path, just as he tried to do that day in court.
Since then, it has occurred to me that people in general (not just lawyers) who are disinclined to Argue often see great virtue in the concept of unity. For them, there is a harmony in agreement that is disturbed by the clash of opposing viewpoints. I can usually spot lawyers who are wired this way because their courtroom presentations tend towards the pedantic. They give a lecture about their own viewpoint rather than engaging forcefully with the viewpoint of their OC. Lawyers like that are more comfortable writing briefs to appellate courts than they are making evidentiary or dispositive Arguments in Trial courts.
In the realm of the broader world, I think that the harmonious unity sought by Argument-adverse people might be a worthy eschatological goal and I sincerely hope we all get there some wonderful day. But until that peaceful kingdom comes to Earth, we’re just going to have to hash things out the hard way because disagreement and Dispute are baked into the human condition. At least that’s my belief, which I am happy to Argue about over a beer or cup of coffee.
In the smaller realm of the Litigation world, I think that suppressing Argument in the name of harmony won’t result in unity either, because Argument is how Parties, lawyers and judges learn the truth about the Dispute. Without Argument there will be no truth. Without truth, Parties won’t be moved toward compromise. Without a movement to compromise there will be no Resolution—and Resolution is the sole reason that Litigators exist. It is our Mission.
To be Missional then, a Litigator must not only engage in Argument, he must embrace it.