Write On!
No. Vol. 43 No. 4 Pg. 52
Wyoming Bar Journal
August, 2020
Traits
of Credibility, Part 4: Candid Concession
Michael R. Smith University of Wyoming College of Law
Laramie, Wyoming
In the
December 2019 edition of this column, I discussed how a legal
writer can establish credibility as an honest and trustworthy
advocate in the eyes of a court by being candid about adverse
facts and law.[1] Another aspect of candor that can
enhance an advocate’s credibility is thoughtfully
conceding “concedable” legal points that favor
the opposing side and thereby narrowing a matter to those
issues that are legitimately contestable. As I explain in my
Advanced Legal Writing textbook:
Some points are worth contesting; others are not. Courts
often frown upon advocates who steadfastly refuse to concede
anything and thereby unnecessarily complicate and lengthen
the decision-making process. Such behavior sends the message
that the advocate is more interested in being contrary and
combative than in being honest and forthright about the
legitimate points of contention in the case. On the other
hand, an advocate can gain much by candidly conceding
“concedable” points, thus narrowing the focus of
the dispute.[2]
We can
see an effective use of candid concession by the appellate
attorneys for the State of Wyoming in the case of Nielsen v.
State[3]. In this case, the defendant Nielsen
was convicted of felony murder stemming from the death of his
girlfriend’s 3-year-old son. On appeal, the defendant
argued that the State’s expert medical witnesses gave
impermissible testimony at his trial. Because the defendant
had failed to object to this testimony at trial, the Wyoming
Supreme Court reviewed the issue under the three-part test of
the “plain error” standard of review: “To
establish plain error, Mr. Nielsen must show that ‘(1)
the alleged error clearly appears in the record; (2) the
alleged error clearly and obviously violates a clear and
unequivocal rule of law; and (3) the alleged error affects a
substantial right’ to his material
prejudice.”[4]
Under
this test, the defendant had to prevail on all three of these
points. The attorneys for the State, however, in a
demonstration of commendable candor, conceded two of these
three points, in effect relieving the defendant of two-thirds
of his burden on appeal. After setting out the three-part
test for plain error in their brief, the attorneys for the...
