Att Pro Tip of the Month – Gray’s Anatomy

No, that’s not a spelling error. For years, my Thursday night respite after a long week of depositions and discovery responses was drifting off to Shondaland to watch Meredith Grey manage the dizzying surgical board and evolving relationships at Seattle Grace. Rather, I’m referring to the precision (though thankfully not with the use of a scalpel) that attorneys must navigate the gray areas of the law as we craft our arguments and shape the laws of our respective areas of practice.

As a population who likely entered law school seeing the world in black and white, we had to quickly get comfortable operating in the gray. What is a legal gray area? It is a situation we often encounter in practice where existing law does not neatly apply but where an opportunity exists to allow counsel to present an argument which may ultimately lead to new developments in the law. Not only does this require creative advocacy, but also an adherence to our Rules of Professional Conduct. So, as you develop those arguments, consider your ethical obligations under Model Rule 3.1.

Rule 3.1 concerning Meritorious Claims & Contentions prohibits a lawyer from bringing or defending a proceeding – or asserting or controverting an issue therein – unless there is a legal or factual basis to do so that is not frivolous. Violations include pursuing claims for damages that never occurred, making arguments the lawyer knows are legally impossible to win, or filing suit solely to harass another party as in the $54 million pants case. The Rule considers a good faith argument for an extension, modification, or reversal of existing law appropriate, or, in other words, not frivolous. The Comments to this Rule are particularly insightful and discuss the balance we must strike when faced with ambiguity. Specifically, the Rule states that “[t]he advocate has a duty to use legal procedure for the fullest benefit of the client’s cause, but also a duty not to abuse legal procedure.” And, while the current procedural and substantive law establishes the limits within which you can proceed, the Comment acknowledges that the law is not always clear and never static.” Accordingly, in determining the proper scope of advocacy, account must be taken of the law’s ambiguities and potential for change.” As always, check your jurisdiction for any additional requirements related to this Rule.

What is the practical application of Rule 3.1? It may mean thoroughly vetting your client and the alleged facts of their case through a rigorous intake procedure (even beyond your normal process) to ensure you have a factual and legal basis to file a lawsuit on their behalf. Or, if there is no case law on point in your jurisdiction for the argument you want to present in response to a motion for summary judgment, you might cite persuasive precedent from another state within your Circuit. As the Comment further instructs, the test is whether you can make a good faith argument, knowing this may even require you to develop vital evidence through anticipated discovery in the case.

While others may be wrongfully relying on AI alone to develop predictable arguments, distinguish yourself by presenting thoughtful and innovative good faith arguments within the bounds of Rule 3.1. And whether you are Team ER, Grey’s, or The Pitt, I think we can all agree we are glad to be wielding a pen and legal pad and consulting Black’s Law Dictionary rather than surgical instruments and Gray’s Anatomy.

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