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IndyBar: Bearing the Burden of Reasoned Argument

April 3, 2019

iba-pres-barnard-tomAs a young associate with my first law firm, I was blessed to learn the ropes from several senior and experienced litigators. One in particular stands out due to his highly entertaining post-hearing descriptions of courtroom events. His colorful and passionate recounting of the highs and lows of his trials or hearings served as significant events for those of us “back at the firm,” who, as shiny new lawyers with no real world experience, hung on his every word. One day, after what must have been a long and stressful hearing, our mentor arrived back in our office, threw off his coat, stared at us without speaking at first, then with a sigh proclaimed, “Boys, I’m tired of bearing the burden of reasoned argument.” We listened as he explained in detail the many rebuttals he was forced to offer in response to arguments that, in his opinion, should never have been advanced in the first place. He was teaching us that reasoned arguments do not always carry the day, and when they come in second to illogical or shaky arguments, it is most frustrating.

Thirty-five years later, as I recall those events with the benefit of my own experiences, I have a greater appreciation for that senior attorney’s simplistic but resonant statement. I believe a universal truth exists, which impacts all of us engaged in the practice of law. Reasoned argument is hard work. And it is a goal worth attaining. Whether you advance arguments in a courtroom, a board room or a conference room, what sets you apart as respected legal counsel is your ability to offer reasoned argument based on the applicable law. This sounds simple and perhaps even trite, but like writing a timeless melody, it can be much harder to prepare than first appears.

It all starts with the need for relevant facts. No reasoned argument can be based on incomplete or incorrect facts. As retired Judge Richard Posner has stated, “nothing is simpler than to make an unsubstantiated allegation.” The converse is true as well: nothing is harder than to muster and provide all relevant supporting facts. Another of my mentors, Linda Pence—a former federal prosecutor—taught me 25 years ago the importance of a relentless search for all relevant facts. There were times in our cases where the team would report to her that one or more categories of facts were just not available to us. Such reports were not well received. We were told to keep digging for the facts. And it was hard work, whether reviewing thousands of documents or interviewing witnesses.

The importance of relevant facts to any legal situation is not a recent development. In 1770, John Adams observed that “facts are stubborn things: and whatever may be our wishes, or the dictates of our passions, they cannot alter the state of facts and evidence.” We strive for an accurate set of facts no less today than in 1770, and the recent popular phrase “fake news” serves to remind us that any reasonable discourse depends on accurate and unaltered facts.

Once armed with the facts, the lawyer may then apply the rules to the facts. Whether ultimately successful or not, a well-reasoned application of the law to the proper set of facts is one of the most satisfying efforts in our profession. For a few years as a young lawyer, I spent considerable time negotiating commercial leases. One of my most important challenges was to back up every position with a reasoned argument, based on either applicable facts (common area maintenance charges were improperly allocated among tenants), or the law (indemnification obligations can be limited by statutory or common law). Baseless or thin arguments for lease term adjustments seldom succeeded. The same holds true in courtrooms. Reasoned argument is compelling because it naturally follows a consideration of the accurate facts.

Our profession is rightly centered on reasoned argument, and I would argue that we are the resource to whom people turn for the resolution of important disputes because of our training in this most important skill. Think of the people who influence you the most and why they influence you. It is likely because they advance well-informed, thoughtful analysis to arrive at a compelling conclusion. While “bearing the burden of reasoned argument” is demanding and sometimes frustrating, we can take pride that this skill is the hallmark of what we do as lawyers. It separates us from other professions, where successes and failures are more dependent on sales and popular demands.

As John Adams began his legal career at the age of 28, he wrote about the pride he felt in becoming a lawyer and applying his acquired skills to uplift society. His words apply as much today as when written more than 250 years ago: “Now to what higher object, to what greater character can any mortal aspire, than to be possessed of all this knowledge, well digested and ready at command, to assist the feeble and friendless, to discountenance the haughty and lawless, to procure redress to wrongs, the advancement of right, to assist and maintain liberty and virtue, to discourage and abolish tyranny and vice.”

These are the fruits of reasoned argument within our profession. How lucky are we to pursue it every day.•

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