Aggressive Reasonableness

Sounds like a contradiction, but it’s not. I once handled an appeal where this approach made all the difference.

Plaintiff owned a single-family home near several fraternities on the south side of the University of California’s Berkeley campus. The fraternities regularly hosted weekend parties that got out of hand, with underage drunks discharging noise, garbage, and other unmentionable projectiles onto Plaintiff’s property.

His trial lawyer filed suit against about 50 fraternities, seeking damages for nuisance – for Plaintiff individually and for a class of all homeowners in the south campus neighborhood. The complaint alleged that the fraternities caused the nuisance by serving beer to the kids. The trial court dismissed the complaint for two reasons: (1) a California statute immunized “social hosts” who serve booze to people who later cause injuries, and (2) a nuisance action involves too many individual determinations of damages to be suitable for a class action. I was brought in to help with the appeal.

I came up with a decent argument that the immunity statute didn’t bar the action, because although the complaint was full of allegations regarding alcohol, the guts of the complaint was the allegation that the fraternities allowed members and guests to throw stuff onto Plaintiff's property. The cause of the throwing (the fraternities serving beer) was irrelevant. I analogized this to a church whose sermons work the congregants into a frenzy in which they dumped stuff onto the property of church neighbors. A court could not, of course, penalize the sermons themselves (because of the First Amendment freedom of religion clause), but it could award nuisance damages for the dumping. I pushed that argument quite aggressively.

But a class action for nuisance damages? I could think of no way to defend that one. Each homeowner would suffer different “discomfort and annoyance” damages, depending on how far she lived from the offending fraternity. Same with the effect on the market value of the home. The trial court was right, and there was no reasonable argument I could make for reversal on that issue.

So I aggressively pushed the first point, and reasonably conceded the second point. It worked. The Court of Appeal reversed.

Why was this approach important? Well, success often depends on the lawyer's credibility. No matter how good an advocate you are, there are some arguments that no advocate can sell to a reasonable person. When I spot those lemons, I try to turn them into lemonade. Conceding a lemon can enhance my credibility, and that can help win the case.

It isn't often that a judge sees a lawyer conceding something significant, and when she sees it, the judge might well give more credence to the lawyer's arguments on non-conceded issues. When I find something to concede, I put the concession right up front in the brief - usually on the first page - and I do it graciously, without any grumbling. In this case, if I hadn’t conceded the second point, my credibility on the first point would have suffered badly and I might have lost it.

Aggressive reasonableness. Be bold when you are right, but modest when an argument just doesn’t sell.

by M.A.T. Legal Director Myron Moskovitz