Gresham’s Law And The Practice Of Law

One of the foundational concepts of monetary theory is Gresham’s Law. Named after the Tudor-era financier who founded the Royal Exchange — who didn’t actually formulate it but gets the credit — it states that bad money drives good money out of circulation. If you have copper and zinc pennies in circulation, both nominally worth one cent, but the value of copper is higher, you create an arbitrage opportunity and gradually the copper coins will be taken out of circulation by enterprising individuals.

But the bad tends to drive out the good everywhere. Bad habits overpower good habits. Bad people push away good people. Bad procedures make good procedures irrelevant.

Keep An Eye On Your Bad Habits

So keep an eye on your bad habits. If you’re not careful, they’ll quickly overpower your good ones. No matter how carefully researched and thoughtfully drafted your brief is, a few typos will completely ruin the effect and turn the brief into a mess. One badly argued section will burn your credibility for the rest of the brief and probably the rest of the case.

This certainly doesn’t mean that you should be afraid of taking risks — in fact, timidity almost always reflects badly upon its practitioner — but you should always keep in mind that the importance of carefulness is almost always even more than you expect. Carelessness compounds, and a sloppy mistake is almost always going to draw attention. That’s in large part because you’re expected by all parties — clients, judges, and other lawyers — to be careful and present things clearly and correctly. No one will give you extra credit for doing the basic aspects of your job, nor should you expect them to.

Keep On Task And On Message

It’s likewise important to keep things on task, on message, and on a consistent theme. An otherwise clear, persuasive argument is ruined once you start rambling about some confusing or unrelated topic that the judge doesn’t follow, or start misstating an authority.

Instead, always remember to stay organized and focused, looking to shave off any areas of weakness or distraction that you can find. There are always areas to improve in any argument, and time spent on improvement is rarely wasted. When I prepare for an argument, I typically go over it in my head and type up notes, then go over the notes again and again to tighten it, find weak points to emphasize and see anywhere where I can improve. Briefs should go the same way: it never hurts to go over everything another time — including the old trick about reading it backward — to look for weaknesses and areas of improvement. And pulling in someone else never hurts. It’s sometimes shocking how, after you look too long at something, you end up missing something that is obvious when reading it the first time.

Always Keep Focused On Continual Improvement

Perhaps the best way to avoid the slow rot of Gresham’s inevitable and misattributed warning of atrophy is to focus singularly on continually improving whatever is before you. By keeping your eye on all of your potential weak spots, you can more easily find where the weaknesses actually are. So start today, and make it your goal to keep the bad from driving out the good.

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