In today’s Wall Street Journal there’s a great lesson on poor advocacy.
The article’s text is indented and italicized.
Bad Legal Argument 1: Rushing Into a Judo Flip
There’s a hidden tax imposed on companies that do business in the United States that hinders their international competitiveness and eventually filters down to consumers.
This "tax" takes the form of certain class-action attorneys who, like a roving shadow, look for any opportunity to claim that a business has done something wrong — for example, provided misleading consumer advertising — without concern for whether any member of the public actually thinks he or she was harmed. To avoid high legal fees and litigation distractions, corporations very often settle, paying out millions of dollars.
Bolding mine. When choosing themes and images ("if the gloves don’t fit…"), always anticipate what happens to your themes and images in your opponent’s hands, like so:
There’s a hidden tax imposed on customers in the United States … this "tax" takes the form of the widespread damage caused every year by unsafe, defective or deceptive products. Numerous business, like pickpockets, look for ways to rip off the public in small ways — for example, providing misleading consumer advertising — without concern for the cost it imposes upon consomers who are hurt, disappointed, or cheated by these products.To avoid high legal fees and litigation distractions in light of the damages, which are small in individual cases but large in the aggregate, customers usually don’t sue even when they have strong claims. That’s why class actions are so important.
Bad Legal Argument 2: Failing to Answer "So What?"
What courts often do in these cases [where not all the money is claimed by plaintiffs] is distribute the money, in an ad hoc manner, to people who are not even in the class, who would not have had standing to sue, and who were never even alleged to have been wronged. This alternative remedy is known as cy pres, which translates to "as near as possible," and in theory is supposed to benefit class members.
But often these windfalls go to charities with little or no relationship to what was at issue in the original dispute. A good illustration is a recent California case involving debt collection practices, in which the unclaimed proceeds were designated for distribution to a legal aid society to use in representing or educating consumers .
While a particular fact may bother you to no end — a completely blank medical record, a deleted email, the defendant blaming an empty chair for what happened — it doesn’t necessarily mean anything to the rest of us. Here’s a simple response:
After extensive research, these two litigators, published in the WSJ, couldn’t find a more galling example than a legal aid society receiving funds from a wrongful debt collection practices lawsuit. So what? What’s wrong with that? What better way to help society prevent the exact wrongdoing that happened in the case?
Bad Legal Argument 3: Getting It Wrong
In our view, this as-near-as-possible remedy in class actions is defective. The Constitution provides for the resolution of "cases" and "controversies" between aggrieved parties. Courts are empowered to resolve those specific disputes, and not to transfer a corporate defendant’s assets to an outside organization that has not appeared before the court. The Constitution does not give courts the authority to satisfy notions of "deterrence" by giving institutions like legal aid societies or universities windfalls when those entities are not even parties to the lawsuit.
In most cases, you will have a flash of brilliance where suddenly a difficult issue will become simple and obvious.
When that happens, write your brilliant insight down. Then go to bed and look at it again the next day. If you can, look at it again next week. Or else you get what happened here.
Class actions are, except where Congress has specifically created federal jurisdiction in an attempt to help businesses, state creations. Article III defines the powers and limitations of "the judicial power of the United States."
That’s a limitation on federal judicial power. There’s no federal limitation on state court power, except where that power violates rights guaranteed by the federal Constitution.
Perhaps that’s what the authors meant, that class actions are a due process violation. Except that’s not what they said. They said the Constitution didn’t empower courts to act that way; well, the Constitution doesn’t empower state courts to do anything, the states are sovereign in their own right.
Bad Legal Argument 4: Pretending the Complex is Simple
Let’s assume they had done that the right way, and had argued class actions were a due process violation. They would still be open to this attack:
After 232 years of judicial, congressional, presidential and state efforts to interpret the Constitution, including a civil war, these authors have figured it all out in three sentences, without a single reference to anything that transpired before them, not even the hundreds of cases specifically raising their critique, nor the dozens of judicial opinions dismissing that same critique. Do we now decide the law by looking neither to the past nor careful reasoning for guidance, but instead by simply declaring "in our view" before our conclusion?
Perhaps they should have perused the legal scholarship network on SSRN for a little bit before publishing that. "’Class action’ AND ‘due process’" returns 378 hits.
Whatever else goes your way, I can guarantee that, if you don’t put in the time to really prepare and test your argument, something will go wrong. And that’s the heart of poor advocacy.