Lawyers Shouldn’t Be Afraid To Concede Weaker Points At Oral Arguments

People generally understand that lawyers often need to take extreme — perhaps unreasonable — positions to advocate for clients. Of course, everyone deserves diligent representation, and clients often do not like to see their lawyers conceding points on any issues. However, judges usually do not take it kindly when a lawyer refuses to concede points even when presented with overwhelming evidence that a point is flawed. Sometimes, lawyers should feel comfortable conceding points at oral arguments, since this might earn an attorney goodwill with a judge, and help the judge focus on arguments that might better serve a client.

Earlier in my career, I filed a motion to dismiss four causes of action in a given complaint. Two causes of action I really needed to get dismissed and had the strongest arguments in favor of dismissal. The other two causes of action were not as essential to get dismissed, and some argument could be made in favor of dismissal and for keeping these causes of action in the case. Most lawyers probably would not have conceded points and would have simply argued that all four causes of action should be dismissed.

However, at oral argument, I explicitly told the judge that I thought that two of the causes of action really warranted dismissal and a more thorough look from the court and that I understood if the court did not want to dismiss the other causes of action. The judge literally smiled at my points, since I made the judge’s job a lot easier, and the judge knew that I was a reasonable lawyer who knew when some of the client’s arguments had deficiencies. The court ended up dismissing one of the causes of action, the one I really needed to get dismissed to promote my client’s interests. It is very difficult to get any causes of action dismissed in the relevant venue, so this was a solid result for the client.

Another time, I argued a motion to dismiss in which I asserted that the case needed to be dismissed due to procedural errors made by my adversary. I cited a bunch of cases in my papers that held that actions needed to be dismissed if such procedural mistakes were made. However, there were other, nonbinding authorities that suggested procedural mistakes were correctable in certain situations.

At oral arguments, the judge flatly asked if the procedural mistake could be corrected or if dismissal was the only course of action. Although it would have benefited my client more if the case was dismissed, I informed the court that the caselaw was a little unclear and, generally, it was left to the discretion of the court. I then related that it might be better to just dismiss the case so that the plaintiff could start over fresh with a new action. If the judge let the case continue with such procedural mistakes, it could open the matter up to an appeal.

The judge seemed appreciative that I did not take a strong position on whether the case needed to be dismissed. Providing practical arguments and showing that I was reasonable ended up yielding  a solid result for my client. At the same argument, my adversary refused to concede a point notwithstanding overwhelming logic advanced by the judge, and I could see that this was not taken kindly by the court.

All told, lawyers might have an instinct not to concede any points since this might show weakness in front of a court and because judges might side with lawyers who appear more confident in their positions. However, conceding weaker arguments can create goodwill with judges that can benefit clients during oral arguments.

Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothman.law.

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