Must Lawyers Always Be Right?

In the film Thank You For Smoking, we meet handsome, smooth-talking Nick Naylor, lobbyist for the tobacco industry. In an early scene, we find Nick at home one evening helping his son with a school essay project, “Why is American Government the Best Form of Government?” Nick challenges the premise of the question, i.e., How do we know it’s the best? How do measure “best” anyway? Nick encourages his son to reject the premise of the assignment. Instead, his son should create an entirely new premise to change the subject and control the issue.

It is here that Nick introduces what he calls his “BS” argument ethos, telling his son no one can possibly answer the homework question in the mere two pages allotted, so he should write about whatever he wants to fill the pages. Pick any subject or practice America performs well, he tells his son, then make an argument. If he argues well, he can “never be wrong.” That’s “the beauty of argument,” Nick triumphantly concludes.

The finest example of Nick’s argument ethos comes near the end of the first act as father and son walk-and-talk in Los Angeles where Nick has been sent to woo Hollywood in service of big tobacco’s campaign to encourage smoking. His son finally asks what a lobbyist does. Nick tells him the job requires “moral flexibility” that goes beyond most people. Seeking to please his father, the young boy asks if he too has flexible morals like his dad.

Nick answers by floating the example of the lawyer who must defend a child murderer. The law says everyone gets a fair trial; shouldn’t corporations get fair hearings too, asks Nick? We watch yet again as Nick moves the rhetorical goalpost. He conflates fundamental constitutional due process in criminal cases with private corporate lobbying in the court of public opinion, just to name one false analogical move. But by seeking a different or higher level of generalization or value abstraction (procedural fairness over individual guilt), Nick reframes the argument on terms everyone will agree. After all, who isn’t for fairness?

Sensing his father’s fallacious ploy, the boy asks what if you’re wrong? To which Nick replies with a grin, “You can never be wrong if it’s your job to be right.” Nick then serves up one more illustration of his ethics on how to argue: chocolate vs. vanilla ice cream. 

If you can’t win the argument whether chocolate is better than vanilla, Nick begins, then change the terms of that argument. “You want only one flavor, just chocolate? Don’t we need more than just that one flavor? Shouldn’t we all have freedom and choice to enjoy many flavors. That’s liberty for us all . . .” And so it goes.

The son reminds his father that they weren’t actually talking about freedom and liberty. They were talking about ice cream. Nick says, yes, but liberty and freedom are what “I’m taking about.” Control the issue, reframe the premise, never be wrong. Show that the other side is wrong, and then you win, as Nick would put it

Lawyers know all these dubious moves well. We too fall prey to the same easy but often false rhetoric of persuasion. Like Nick, we can confuse the sense of “being right” with factual accuracy and even moral rectitude. They are not the same. But Nick doesn’t care. He only uses argument as a way to get what he wants, not as a way to truth, problem solving, or consensus, to name a few of argument’s more salutary uses. Argument for Nick simply means “spin” designed to “win.”

Nick actually doesn’t argue well in the formal sense, but rather argues cunningly and manipulatively. Most of his “arguments” are fallacious and in bad faith. He changes the subject, attacks the person, ignores counter-evidence, creates straw arguments and attributes false premises to his opponent. He’s a kind of argument super-villain who claims to be following the rules of argument when in fact he’s doing so in name only, turning arguments on their heads as weapons in a verbal game.

In the end, Nick is a bullshit artist. He doesn’t care about the truth. He cares only about spinning his client’s interests in the most positive light while also impugning his opponents in the most negative one. Argument is a zero-sum game for Nick. The only point to argument is to “win” by showing the other side is wrong. Nick makes it his job to be right, so that he can never be wrong. He sets up every argument so only he can win.

The cruel irony for Nick, and for those who adopt a similar ethics of argument, is that they are always playing a losing game. Nick’s “you can never be wrong if your job is to be right” is, first of all, very poor logic, as a moment’s reflection will reveal. But, more importantly, his “never be wrong” mantra is self-refuting and ultimately self-defeating. Our ability to argue necessarily entails the likelihood of error. It is built into us. There is no escaping it. Denying that reality is not a workable long-term strategy. It is a pitiful short term one too. If right and wrong are simply verbal placeholders for our desire to win, show others wrong, or grasp at some predetermined endgame, then argument becomes willy-nilly rhetorical jousting or, worse still, mere means to self-involved ends. Our satisfaction – the feeling of being right – is the poorest measure of truth, let alone morality. 

So, what becomes of the arguer who adopts Nick’s “BS” ethos? Like Nick, he or she runs the greater risk of becoming just as vacuous as the verbal game being played. Worse still, that game leads to a lonely existence. It is eventually that vacuous loneliness that reminds us of an ancient lesson for lawyers, one too often re-learned the hard way (at least for this lawyer). Our job is not to be right or to show others to be wrong. Au contraire, Nick. Our job is to humbly aim our arguments in the direction of truth, accept our inevitable failure to hit that mark, and then take aim again – together. 

Empathy Reform in Legal Writing

Lawyers must start acting less lawyerly when they write. Lawyers should instead seek to imagine the most charitable version of the other party’s interests and how they would feel when reading our writing. We should tune our ethical imaginations to the likely emotional responses of both the other lawyer and client to whom we write. In other words, we seek a kind of “empathy reform” in our legal writing, the quality of understanding and sharing the feelings of another. We reflect back to our audience their feelings, not ours.

Some might argue that empathy reform in legal writing threatens our duty of loyalty or advocacy to the client. It does not. It fosters the opposite. Empathy makes us better advocates. Empathy is another way of reminding us to simultaneously “know our audience” and the other side of the argument. Both are hallmarks of effective advocacy. Empathy helps us understand what motivates and drives the other parties in any legal transaction or conflict. Only through such understanding can we hope to resolve the conflict or transaction on emotionally satisfying terms, in addition to legal, factual or financial ones. And it is the emotional dimension that most often undergirds the possibility of repair in human relations. 

As we apply this mindset to our legal writing, we might begin our next email, letter or brief by stating the most favorable version of the other party’s emotions. Let’s be as charitable as possible. Let’s attribute good faith, good will and good meaning to the other side. Let’s place ourselves in their emotional space. Consider beginning with, “You are right to feel . . .” or “I understand your feeling of . . .” or similar expressions of sincere, well-considered empathy. We can also describe what feelings animate our own writing or the emotional valence of our client, not as a perch from which to preach our moral or legal rectitude, but as an invitation to mutual empathy. Nothing further should be said until we’re clear on how each sides feels. We should of course still advocate, argue and debate in our writing as needed, among the other reasons we write as lawyers. Only now we do so from the perspective that invites all sides to understanding even while they might disagree. We thereby presuppose the conditions to give and receive empathy.

Legal Writing – Theme is Heart of Your Writing

As “literary lawyers” who learn from the best fiction and nonfiction writing techniques, we should keep in mind the lively importance of theme in our writing. This recent law-lit piece delves deeper into the meaning of theme and how to develop meaningful themes in your legal writing: theme heart of legal writing

Law-Lit’s Mission: Imagination, Emotion, Story


  1. We revive our moral imaginations and intellectual empathy to compliment legal reason as a path to solving law’s problems.
  2. We engage our emotional and intuitive faculties as foundations for sound judgments in law.
  3. We discover storytelling, along with fiction and nonfiction techniques, as routes to understanding law and better writing in the legal profession.
  4. We aim to become more adept with stories, reading, and writing to enhance communication and persuasion.
  5. We seek to ethically attune ourselves to the rewards and challenges of a fulfilling career – if not a calling – in the law.

Write with Style

Scholar Helen Sword studied as many writing guides as she could lay her eyes on. She saw six points of unanimous advice:

1. Clarity, Coherence, Concision: write sentences that are clear, coherent, and concise.

2. Short or Mixed-Length Sentences: write short sentences or vary sentence rhythm with alternating short and long sentences.

3. Plain English: avoid ornate, pompous, Latinate, and waffly prose.

4. Precision: avoid vagueness and imprecision.

5. Active verbs: active verbs should dominate your writing; use passive verb constructions sparingly.

6. Tell a story: create a compelling narrative.

On drafting sentences, in particular, she offers three guiding principles:

1. Employ plenty of concrete nouns and active verbs, especially when writing about abstract concepts.

2. Keep the nouns and verbs close together in your sentences, so that readers know “who’s kicking whom.” In other words, keep the actor and the action close together; express the crucial actions in verbs and the central characters (real or abstract) in subjects.

3. Avoid clutter: keep your sentences free from extraneous words and phrases.

How to put these principles regularly in play? Sword offers help here too.

1. Check the health of your sentences by pasting them to The “WritersDiet” test will categorize your sentences as “flabby” or “fit.”

2. Replace at least a few “be” verbs (be, been, is, are) with active verbs.

3. Identify your passive constructions and decide whether they add syntactical variety or offer other justification for inclusion. Too many passive phrases wilt the sentence.

4. Make sure at least one sentence per paragraph contains a concrete noun or human entity as its subject, immediately followed by an active verb.

5. A noun and its accompanying verb should pack a quick, one-two punch. Readers lose interest when more than a dozen or so words separate the actor (subject or noun) from the action (verb).

6. When writing about inanimate abstractions, still use active verbs to “animate” them.

7. Cut down on prepositional phrases, especially when they string together long sentence with abstract nouns.

8. When possible, explain abstract concepts using concrete examples (which, for brevity’s sake, I’ve violated in this very blog post!)

As many writers before Ms. Sword have pointed out: there is no writing, there is only re-writing. And, I would add, reading about re-writing. On that score, we should all read (and re-read) Ms. Sword’s engaging practical guide, “Stylish Academic Writing.”