Tips

How to Handle Being Wrong
By: Benjamin Doyle

The world is full of dissonance—competing concepts forced into a sort of harmony. The law is full of examples of dissonance, such as the reasonable person standard, whereby we try to impose an objective standard on an inherently subjective jury pool. (I posit that the objective person from Bexar County and the objective person from Hutchinson County have never met and are likely from different planets.)

We, as young lawyers, are expected to embrace dissonance. We are to be, at once, both an unyielding advocate for our clients and an officer of the court, sworn to uphold the law. The inherent conflict of these responsibilities is messy, and a bright line for conduct is not easily defined.

Luckily, those upon whose shoulders we stand anticipated this problem and gave us guidance, in the form of a mandate:

Texas Rule of Civil Procedure 13 requires that arguments made by counsel must have basis in both law and fact or must be “warranted by good faith argument for the extension, modification, or reversal of existing law.”

To make the determination as to whether your argument is supported by the current state of the law or whether the law must be extended, modified, or reversed, the court necessarily needs to know the current status of the law. But how can a judge be expected to know the ever-evolving circumstance of jurisprudence, especially when opposing counsel is falling down on the job? As it turns out, there is a rule regarding that as well:

Texas Rules of Professional Conduct 3.03(a)(4) states that a lawyer shall not knowingly “fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”

As advocates, we do not always agree with the precedent before us. Nonetheless, our obligation is twofold: (1) disclose ALL relevant authority to the judge, even that which hurts our position; and (2) use our skills to distinguish or, if necessary, argue for the abolition of unfavorable precedent. In short, if the current law says you are wrong, own it. 

We cannot simply labor under the hopes that the judge may not find the precedent that injures our credibility or our client’s case. The rule of law and the integrity of our profession are far more important than any individual client or any single case. In discovery, in motion practice, and in argument, “embrace the dissonance,” and know that the greatest asset for any advocate is the credibility gained by full disclosure and reasoned argument for change.

For more information on the application of an attorney’s responsibility to disclose unfavorable authority, click here.

Benjamin Doyle is a shareholder at Underwood Law Firm, P.C. practicing in civil litigation.  Mr. Doyle can be reached at Ben.Doyle@uwlaw.com.