Don't argue for tit-for-tat rulebreaking in litigation.
Don't argue for tit-for-tat rulebreaking in litigation.
In many contests, unwritten rules of fair competition condone tit-for-tat rulebreaking. Such norms have no place in litigation.
In many contests, unwritten rules of fair competition condone tit-for-tat rulebreaking. For example, in sports such as hockey and American football where penalties can shift the momentum of a game, referees are often accused of issuing “make-up calls.” This occurs when the referee incorrectly penalizes a team, realizes that the call was a mistake, and then penalizes the other team by calling a dubious penalty out of a sense of fairness.
Such norms have no place in litigation. Litigation is not a pure contest, but a contest within the framework of the law. The litigants are not the only participants: the public, the presiding judge, and future litigants all have at least some interest (however minute) in how the lawsuit proceeds. This is so because lawsuits are the central means through which a society’s legal rules, and the rule of law itself, are given effect. Society has a profound interest in maintaining a sense that everyone will be treated fairly, rationally, and consistently in the courtroom. These due-process values require that procedural and evidentiary rules be correctly applied without regard to irrelevant factors such as whether an opposing party got away with breaking the same rule.
A party’s claim that fairness requires a judge to make a ruling consistent with a previous ruling in the same litigation, even if the earlier ruling was wrong, is one example of an argument from consistency. Arguments from consistency are common in law; indeed, the foundational concept of stare decisis — that cases should be decided in a way that is consistent with analogous past cases applying the same rule — is based on the principle of consistency.
When a court relies on a precedential case, they do so not to depart from legal rules, but to apply legal rules. In a common-law system, binding precedents are part of the law; like statutes, precedential cases supply legal rules governing future cases.
By contrast, an attorney’s argument that “my opponent broke the rules, so I should be allowed to break the rules too” is a fundamentally different (and illegitimate) sort of argument from consistency because it requests a departure from the law rather than an application of the law.
Two contrasting anecdotes from Rushing McCarl LLP’s trials illustrate the point. In the first exchange, the trial judge sustained an objection of mine to the opponent’s opening statement; the objection was legally correct but might have been overruled had the opponent not made an analogous objection to our opening statement a few minutes earlier.
Opposing counsel objected when, during the opening, we played damning video evidence for the jury. We were confident that the videos were admissible and would be admitted, and the ordinary rules of opening statements allow attorneys to preview admissible evidence for the jury — including by using visual aids to show the evidence itself.1 Here’s a simplified and clarified excerpt of the exchange.
Example — a proper argument from consistency
During our opening statement for the plaintiff:
OPPOSING COUNSEL: Your Honor, we have objections to these videos. And we certainly did not know he was going to make this part of his opening.
THE COURT: All right. If this was not an agreed upon exhibit, it should not be displayed in the opening. It may not be shown unless it is stipulated to or not objected to.
During the opponent’s opening statement for the defendant:
OPPOSING COUNSEL: The company, traditionally, had been providing paper products, janitorial products to give customers throughout the country. At around the time of the pandemic, they had gotten some interest from the State of New York and particularly the school systems in the City of New York. And there was a representative of the school systems, a company called —
MR. McCARL: Objection, Your Honor. I believe the Court just held that if evidence has not been stipulated to, it should not be discussed or referred to in the opening. He’s talking about hearsay evidence related to a supplier. It’s well-known to the Court that this is objectionable.
THE COURT: What’s good for the goose is good for the gander.
This ruling was proper because our argument from consistency asked the court to make another correct legal ruling. My objection might ordinarily have been overruled on the grounds that the opponent’s infraction was minor, and objections during opening statements are disfavored. But the objected-to statement nevertheless violated both the rule that the opponent themselves had urged just a few minutes earlier and the background rule that attorneys may not refer to inadmissible evidence during opening statements. We asked for, and received, a ruling that consistently applied these rules. “What’s good for the goose is good for the gander.”
Contrast the following exchange. During opening statements in a different federal jury trial, the judge sustained our objection to the opponent’s insinuations about our client’s wealth. The opposing attorney complained at sidebar that we had violated the same rule earlier in the proceeding, suggesting that he should be allowed to violate the rule as well. The judge rejected that argument and explained that a lawsuit is not a tit-for-tat tennis match.
Example (simplified and clarified from the trial transcript) — an improper argument from consistency
THE COURT: Tell me what this line of questioning is going towards.
OPPOSING COUNSEL: Your Honor, with respect to wealth, everything they have asked my client has to do with, you know, your private wealth advisor, this and that, so...
THE COURT: What is your question? I’m trying to see if this is going to an element. Is this a tennis match? “They said this, so we want to say that.” Or is this actually going to an element of the cause of action?
MR. McCARL: Your Honor, this is not relevant to any cause of action or any element of any cause of action. It’s being introduced as prejudicial wealth evidence.
OPPOSING COUNSEL: If they get to ask questions about the defendant distributing money to investors, I should be able to show that wasn’t always true. That’s a half story. And so if that statement and that line of questioning by them is relevant, then why isn’t the opposite relevant?
THE COURT: If you thought that was not relevant, it was your burden to object. Now what you’re saying is that because they brought something in that you find possibly objectionable because it’s not relevant to any part of the case, you should be able to rebut that and that automatically makes it relevant. That’s kind of what I’m hearing. Does that sound about right? Okay. That’s what I heard. I’m going to ask you to move on. I’m sustaining the objection.
There are often opportunities for arguments from consistency in litigation, but keep these limits in mind. It’s usually more persuasive to make such arguments by implication rather than expressly. The argument as articulated should stay focused on helping the court apply the law.
Ryan McCarl is a founding partner of Rushing McCarl LLP, author of Elegant Legal Writing (U. Cal. Press 2024), and adjunct professor at Loyola Law School. For more writing tips, subscribe to the Elegant Legal Writing newsletter and follow Ryan on LinkedIn. McCarl’s book is now available on Amazon.
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Notes
“Graphics and visual aids—e.g., photographic blowups, charts, timelines, diagrams, etc.—can enhance the effectiveness of an opening statement. Showing the jurors a blowup of a key document, rather than simply telling them about it, goes a long way toward establishing the credibility of your case (‘a picture is worth a thousand words’).” Rutter Group Prac. Guide Fed. Civ. Trials & Ev. Ch. 6-H (2023).