Words. Point taken

• Author: Bryan A. Garner
• Pages: 32-33

them, blocked and tackled to make it

smooth sailing for them, and allowed

them to spend too much time with

technologically advanced devices and

on social media, which limited their

ability to communicate face to face,

inhibited relationship-building and

encouraged instant grati cation. As a

boomer lawyer and helicopter mom

of two millennial lawyers, I know

 rsthand how I shaped children of the

millennial generation.

And Generation X and boomer

lawyers refuse to take millennial val-

ues seriously because they are not their

values. They treat the values of millen-

nial lawyers like newfangled notions.

What’s old is new again

These are not newfangled notions.

These values have been proven by the

midcentury lawyers of the Greatest

Generation—those who came home

from war and saving democracies

abroad to take the law profession to

new heights by paying attention to

the values of respect, honor, service

to communities, making positive

differences in the lives of others, and

mentoring young lawyers to take the

profession forward. It turns out mil-

lennials have the same values.

Millennial lawyers understand that

progress in the global economy does

not allow us to return to past methods

of practice. But they also understand

that there is no reason not to return to

proven values that are consistent with

who and what we are as professionals.

In making the choice for change,

we need to remember that they are not

widget-makers. We are professionals,

and it is time that we acted like it—

according to the values of a generation

that risked their lives for ours—and to

bene t a generation that we created. Q

Susan Smith Blak ely is a former

partner, law c areer counselor and

author of the Best Frie nds at the Bar

book series for fe male law yers. Her

most recent book i s What Millen nial

Lawyers Want: A Bridge from the Past

to the Future of Law Practic e (Wolters

Kluwer/Aspe n Publishers, 2018) .

Practice Matters | WORDS

WORDS

Point Taken

The gentle art of impeaching adversaries

BY BRYAN A. GARNER

In the popular mind, impeachment

is associated with presidents and

other high of cials. But to the

lawyer, it’s also associated with

witnesses—especially with showing

that a witness, on an earlier occasion,

said something inconsistent with that

witness’s current testimony. The more

wildly inconsistent, the better.

Because the word impeachment can

refer more broadly to discrediting the

truthfulness or accuracy of anyone, I’d

like to discuss here an argumentative

technique that effective legal writers of-

ten use: quoting your adversaries to dis-

credit the reliability of their arguments.

As an advocate, of course, you want

your own stances to be unimpeachable.

The best way to damage an adversary’s

positions when responding is to quote

that person’s own words back to the

judge or jury and then to demonstrate

how inaccurate they were.

The way Aristotle phrased the idea

in his Rhetoric is that you must refute

the adversary’s arguments that might

have made a good  rst impression: “You

should ... make room in the minds of

the audience for the argument you are

going to offer; and this will be done if

you demolish the one that has pleased

them. So combat it—at every point in

it, or the chief points, or the successful

points, or the vulnerable points, and

thus establish credit for your own argu-

ments.” (I’ve closely paraphrased page

236 of Lane Cooper’s 1932 translation

titled The Rhetoric of Aristotle.)

The Wright stuff

An excellent example appears in

Charles Alan Wright’s U.S. Supreme

Court brie ng in Mississippi v. Louisi-

ana,  nally decided in 1995. As Justice

Anthony Kennedy wrote in the opening

line of the dispositive opinion, “Like the

shifting river channel near the property

in dispute, this litigation has traversed

from one side of the docket to the oth-

er.” In navigating the case to a successful

conclusion, professor Wright—of Fed-

eral Practice and Procedure fame—rep-

resented the state of Mississippi against

the state of Louisiana in a dispute over

the ownership of a small island in the

Mississippi River. When responding to

arguments, Wright relentlessly im-

peached his adversary, but always in a

tone of calm detachment.

The initial reply brief contains many

choice illustrations of the technique.

Here, for example, note how Wright

cites precise pages of inaccuracies:

Louisiana attributes to the district

court  ndings that the district court

never made. On page 1 of its brief, and

again on pages 3 and 32, Louisiana con-

tends that the district court found that

Stack Island had “washed away entire-

When responding to argu-

ments, Charles Alan Wright

relentlessly impeached his

adversaries in a tone of calm

detachment.

Photo by AP

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