Listen carefully when a lawyer says, “You’ve got an argument” or “we could argue that …” followed by some convoluted reasoning. This phrase could mean that your position is a loser but that he might be able to stir up some controversy and make life a little difficult for the other side. It may also mean that your lawyer hasn’t got the stones to give you the bad news. Lawyers know that clients have a tendency to take comfort in these words. To clients these words seem to translate into something like “if we say this the other side will capitulate.” But, your lawyer takes comfort in the fact that he has not given you any assurance of the outcome. What this phrase specifically does not mean is that the argument has any merit. In fact, I think it is most used when the argument has no merit. I am overstating the case, of course, but often what happens is a mutual self-deception. 

A while back, I had the job of giving a client the bad news that a contract simply did not provide for the license of certain software products. My client pointed to some language in the contract and said “but we could argue that …” and followed it with an interpretation of some words that defied common sense. Well, the other side can read the contract too, and they can find something they can argue too. This client proceeded to argue with his licensor and got nowhere. From this he concluded that the licensor was either a fool or a knave, since his argument should have worked on any sensible person. But, what he did not end up with was the license. Would he have done better without the self-deception? Who knows? But you have to believe that on average, you are better off understanding the real situation than placing your hopes on some half baked theory.

An argument is a fine thing, but don’t count on defeating your opponent with some Byzantine argument. In any negotiation or litigation, the best ally you can have is good commercial economics. Failing that a simple, easy to state, common sense reason that a thirteen year old could understand will hold you in good stead.