- Tsongas Litigation Consulting
TEEING IT UP FOR YOUR OPPONENT: REFUTATION SHOULD NOT BE SO EASY
“As the longest-tenured owners in the NBA, the Sterlings have employed five African-American coaches, scores of African-American players, an African-American general manager who held that job for 22 years and staff….”
I was watching the latest installment of the Donald Sterling/Clippers saga on ESPN when the above quote from Sterling’s response to the league was read. For a brief, VERY brief second I thought “Well, there is that…” but that quickly faded even before the announcer reminded me that the general manager in question, Elgin Baylor, sued Sterling for racial (and age) discrimination. Conducting a very quick and simple inquiry into that lawsuit, one learns that one of the allegations was that Sterling brought women into the locker room to check out the “beautiful black bodies.” The allegations were also that Sterling “had a vision of Southern plantation-type structure for the Clippers” which meant (to Sterling) that the team should be “composed of ‘poor black boys from the South’ and a white head coach.” Then there is the counter-point to the “scores of African-American players.” 78% of the league’s players are African-Americans, so signing “scores of African-American players” is not a valid argument that you are not a racist. Talk about teeing it up for your opponent!
We conduct many strategy sessions — on cases ranging from IP to product liability to insurance defense. In each session there are at least a couple of times when someone will raise what they believe is a strength, but everyone quickly realizes that our opponent’s response could poke cannon-ball sized holes in it. (The alternative is also true – a worry will be raised, and someone will respond by saying “Well, I’ll just argue…” followed by a long explanation that is painstakingly detailed and difficult to follow.)
The point is relatively simple, but can be forgotten in the heat of battle: Easily refuted arguments only hurt your credibility and make your entire case seem weak. It might seem like a good idea; there might be something alluring about its simplicity; perhaps you want to include everything you can, hoping that something will stick. Resist the impulse.
There’s a commercial on TV now that reminds me of one of my favorite Calvin and Hobbes cartoons. Both create the impression that “everything is fine” by showing a very narrow picture of a room. In the commercial, it’s a dad and children in the kitchen as they Facetime with mom; in the cartoon it was Calvin on the corner of his bed, showing just a small part of his room. In both, the camera angle expands and you see how messy the rest of the room truly is.
Ask yourself, how easy is it to expand the camera angle and see the rest of the room? If you widen the angle, and you have to really work at making something negative appear then chances are it’s a strong argument. If your opponent has to go into overdrive to defeat the point with a lot of “yeah, but….” explanations, then chances are it’s also a strong argument. Your arguments should make your opponent sweat, not salivate.