Persuading in close cases
Say you're writing a persuasive document, such as a motion or brief. Suppose you think one of the legal issues is a close call: objectively speaking, it could go either way. What's the best approach to take? In other words, which is more persuasive?
Approach 1: Downplay the adverse authorities (without ignoring them), emphasize the authorities that support you--even if they do so indirectly or weakly, and phrase your argument in the most favorable terms you can. (You're not fudging on the law or the facts, and you're not using hyperbole or exaggeration.)
Approach 2: Concede that it's a close call and that the authorities don't support a clear outcome in your favor. Show how the authorities can be construed to support the result you seek.
Let me be clear: this is not a question merely of tone. I advocate a balanced, "neutral sounding" tone no matter the approach. I just want to know what lawyers and judges find persuasive: a forceful argument that says "I'm right and here's why," or a more balanced presentation that says "it's a hard case and here's a reason to go my way."
This question came up in my class today, with students on both sides. Click on "Send me a comment" and give your view.