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I would have drafted based on her argument while letting her know you respectfully disagree. Would only really push it if it felt like a malpractice issue or something. Smart people can differ on conclusions
This is what I have done before. Sometimes the result is that the partners argument fails, whereas mine would have been successful
I’m on the transactional side but had to do legal research for a partner who kept misremembering the outcome of a case from a few years back and kept saying my memo was incorrect and to redo. I was a first year and I said no, I don’t need to redo my research because I had done it thoroughly and I know I’m right. It startled him, as I think I yelled a bit into the phone. Then I took a breath and said, I clearly hadn’t effectively convinced him so I’d take another go at it and also sent sources. A few hours later he agreed with my findings. Sometimes I run into stubbornness, but as someone who tries to push against confirmatory bias, I find partners appreciate it the few times I push back. I’ve learned to be more tactful... Perhaps a phone call is more effective to hash things out and try to understand if you’ve missed something? If your partner did it herself, I imagine she feels a bit of frustration and you may have lost some credibility for the next time you push back on a legal argument. Perhaps express willingness to be a team player but say you genuinely couldn’t understand X considering Y case law and whether she has a few minutes to discuss in case helpful going forward. All speculation (and I’m glad I’m not in litigation)!
I question things once. After that I just do as asked. I’m not the partner, this isn’t my firm, is ultimately not my neck on the line, and there’s always shades of grey in the apparent black and white of the law
Same A3. I bring it up once and talk through it, but ultimately it’s their decision. Just did this for something- rules clearly state how to file (think page limits and exhibits). I told him, but he stated this is what he wants to do.
Without knowing how clearcut this issue actually is, this seems way too argumentative. You refused to write the draft?
This seems like a recipe for not getting work from this partner any more. Your job is to take things off the partner's plate.
You might be right on the issue, or you might be missing something (presumably, the partner has experience or context you don't), but that isn't really the point. The partner's name is on the motion, and if you aren't willing or able to populate the motion with the arguments they want, then you aren't doing their job.
If you want the freedom to draft your own arguments and say no when you disagree, you could always build your own practice.
I agree. Sometimes you need to just follow up instructions.
No. I didn’t refuse. I just kept rewriting it based on what she would verbally tell me and it was never what she wanted because I couldn’t ignore a crucial portion of the argument. So when I couldn’t draft it without that portion in a way that made sense to me, she gave up on me.
The issue is that she wants to compel production of psychotherapist records when the plaintiff dropped her mental anguish claim. I told her that they are privileged unless we can show plaintiff is still relying on her mental/emotional condition as part of her claim.
My partner wanted to ignore the privilege analysis and focus on how relevant the records are. To me, that doesn’t cut it.
I actually thought you were correct until I read this comment re: the specific legal issue. The partner may have a gray area where the records are discoverable, but perhaps not admissible, depending on the type of case, whether the Plaintiff’s mental status is relevant to liability, etc. I didn’t read closely enough to see if you ever said which jurisdiction but an in camera inspection by the Court may be appropriate and could be helpful for your client. Either way, you’re billing for it. I’ve been on both sides. If I still wore that hat and could bill for it, I would certainly try. There are times when your supervisor/partner is just wrong. Maybe they didn’t see that new case or are asking you to do something unethical. This isn’t that situation. Choose your battles.
I’m not argumentative with them. I may give my thoughts and question something (once) but it’s not an argument. Just the other week I was drafting an MSJ where this issue came up. I felt pretty good about the motion overall but there was one claim where I didn’t think we could argue for summary judgement with a straight face. They agreed that it was almost certainly a losing argument but we had to include it more as a CYA move with the client.
I just remember that they’ve been doing this longer, they know more than me, and if they’re telling me to include something, they have a reason for it. For now, they call the shots. Unless it’s something blatantly unethical, I’m doing it.
I'm going to add that I think it really depends on who is signing the pleading and who is arguing it. Most of the responses have assumed ultimately the answer to both of those questions is "the partner," but earlier in my practice I would have partners do this to me and also expect me to sign and argue. I would decline in those cases, and tell them politely that they could sign (so the judges would know who advanced the argument) and if for some reason I still had to be the one to argue it, I'd start my argument off by making clear who I was standing in for. The judges knew what was going on, especially because certain partners at my prior firm had a reputation for those kinds of motions.
As a partner, when I've had an associate do what you do, but I truly think it's more nuanced than you may realize, I've pointed out that I think you're approaching it more from the neutral position of the judge or a law clerk and you're evaluating rather than advocating. So outline it the way I've asked, but I ensure that I'm the one to sign and argue.
Is the partner’s signature going on it..? I’ve learned from experiences like this to never assume I know better than the partner.. sometimes, it’s something like the partner knows how the judge thinks and rules.. maybe it’s the wrong argument but it consistently wins in this jurisdiction.. or maybe the partner is setting something up for appeal? The point is, I can’t count the number of times that I’ve done things the partner’s way and, later on, seen the bigger picture. Plus, I want to keep getting work!
Pro
I tell people why we can’t make the argument they want. If they insist and they are signing and arguing, I include it IF it’s not a malpractice issue (very few things are a legit malpractice issue and almost anything can be dealt with). A mentor of mine used to say that you can find cases to support almost anything or argue why you’re right even if every case goes against you. He was correct. That said, if it’s a real malpractice issue, I tell them no and/or elevate higher in the firm.
If I’m signing and/or arguing, I’m not including anything I don’t agree with unless if it’s a tangential argument I won’t be mentioning at argument. I give many many chances to convince me I’m wrong. I never ever ever sign anything because some partner says so.
Countless times I drafted legal arguments that I fundamentally disagree with because the case laws say otherwise. However, at the end of the day, it’s not my firm; it’s not my call. Of course, I always put forth my ideas and points to the partners. If they disagree, I'll do whatever flows their boat because I defer to their real-life experience as opposed to my junior lawyering skill + lexis research.
I used to feel the same way, until again and again I saw judges ignore the law, and ignore relevant arguments to get to a specific result. Perhaps your partner has experience with these types of arguments and knows you are weak on the law but feels that the argument to make in this particular court under these circumstances is the one she wanted you to make. I
It depends on the partner and I will push back if I think the partner is missing something but what you described above, I wouldn’t do. Yeah, sometimes arguments are weak (losers!) but that doesn’t mean you don’t make the argument especially if your partner tells you to and there is arguably some case law on point. The judge is the one who decides what argument makes the cut and I’ll never cease to be amazed at what judges do so it really doesn’t hurt to try (unless an obvious misrepresentation of the law)
I’ve seen partners make arguments that directly conflict with existing case law and win damn near every time. My SO has that knack, too. It blows my mind. My conscience wants to follow the law. They’re not afraid of getting a “no” or making new law. I transitioned out of lit :) Not bitterly - I just realized I don’t have the passion or the guts to pull off what they do. It really is amazing sometimes. And ultimately, it’s about what the client wants!
Congrats! Yes, that’s exactly what I mean.
I’m a named partner in a firm and if you would have been my associate, I wouldn’t give you another assignment. She’s not wrong. She’s thinking outside the box which is different than being unethical or wrong. Creative or new arguments even contrary to existing law occur all of the time. It’s up to your opponent to take the contrary view. So long as it’s ethical and not malpractice, think outside the box or you will never make it in this practice.
I typically sign anything that I am heavily involved with so I want the position to be framed in a manner that I am comfortable with. I long ago stopped nit-picking and insisting that every argument be exactly as I would write it, a true mentor will allow younger attorneys to include positions that they zealously advocate while just ensuring that you can support the argument legally. It is important that you are heard on issues of this nature but ultimately it is the partner’s call, right or wrong. Hopefully you work with folks who are right much more often than wrong
You are right. Partner should have explained why she wanted a different aporoach. This is why it pays to open your own practice.
Meh - I’m not a litigator, but if I share my thoughts and the partner disagrees, I do what they ask and see how it plays out. And 90% of the time, I eventually learn what they already knew.