Even more than being buried alive, Justice Lambden says attorneys are terrified of missing an argument. This is why attorneys tend to indulge the temptation to be overinclusive in their arguments.
But making too many arguments comes at the cost of credibility. If the attorney is just “running the loop again,” the bench is more likely to tune out. “We always notice,” Justice Lambden recalled from his time on the Court of Appeal, when an attorney told the court which argument to focus on. You will show courage if you acknowledge a certain argument is not your strongest, and you will earn credibility when you pivot to the argument that is your strongest.
Watch the clip here.
This is a clip from episode 51 of the California Appellate Law Podcast. Listen to the full episode here.