Write On!, 0820 WYBJ, Vol. 43 No. 4. 52

Author:Michael R. Smith University of Wyoming College of Law Laramie, Wyoming
Position:Vol. 43 4 Pg. 52

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...

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