It’s widely understood that lawyers often need to adopt strong — and sometimes extreme — positions to advocate effectively for their clients. Vigorous representation is essential, and clients typically prefer to see their attorneys fight every point rather than concede anything. However, judges generally don’t appreciate it when attorneys refuse to acknowledge flaws, even in the face of overwhelming evidence. In fact, strategically conceding weaker points during oral arguments can actually build credibility with the judge and help steer attention toward stronger arguments that are more likely to benefit the client.
Earlier in my career, I filed a motion to dismiss four claims in a complaint. Two of those claims were particularly important to my client, and I had strong arguments for dismissal. The other two were less critical, and the arguments for dismissal were weaker. Many lawyers would argue for all four dismissals without admitting any weaknesses.
But during oral argument, I told the judge outright that I believed two of the claims clearly warranted dismissal and deserved close consideration, while I understood if the court chose not to dismiss the other two. The judge appreciated this candor — even smiling — because it made the court’s job easier and showed that I could recognize the limits of my arguments. Ultimately, the judge dismissed one of the key claims I needed tossed, which was a strong outcome given the difficulty of obtaining dismissals in that particular court.
In another case, I argued a motion to dismiss based on procedural errors made by the opposing side. I cited cases supporting dismissal for such errors, though there were also less authoritative opinions suggesting courts could allow corrections in some circumstances.
When the judge asked whether the errors were fixable or if dismissal was the only solution, I acknowledged that the law wasn’t entirely clear and that the court had discretion. I suggested that dismissing the case might be better so the plaintiff could start fresh, and to avoid potential appeals over procedural issues. The judge seemed to value my reasonable, practical stance. In contrast, opposing counsel stubbornly refused to concede even in the face of solid reasoning from the court, which didn’t reflect well.
Ultimately, while many lawyers believe that conceding any point may come off as a sign of weakness, being open about less persuasive arguments can actually strengthen your standing with the court. Demonstrating reasonableness and focusing on stronger issues can create goodwill with judges and lead to better outcomes for clients.
