13.7 REBUTTAL
Counsel for the petitioner or moving party should not reserve important arguments for rebuttal. Supreme Court Rule 28.5 provides that “counsel making the opening argument shall present the case fairly and completely and not reserve points of substance for rebuttal.” In many courts, including the United States Supreme Court, counsel may not set aside time for rebuttal; counsel can preserve time for rebuttal only by stemming the tide of the justices’ questions before his or her allotted time has elapsed.
You may wish to reserve time strategically, depending on local custom. For example, some courts allow counsel to reserve time for rebuttal, and give counsel only the time reserved. Other courts, in contrast, give counsel the reserved time along with any argument time that was unused. If the court limits rebuttal to the time reserved, you should reserve a more generous amount of time; if the court adds unused argument time to the rebuttal, you can reserve less time. Be sure you understand your own local rules as to rebuttal before the day of your argument.Although final decisions about what to say in rebuttal must be made on the spot, there are some guidelines you can follow to make your rebuttal more effective. First, remember that rebuttal is for rebuttal only.41Any point you make on rebuttal should be a response to a point made during your opponent’s argument. Some courts will interrupt counsel who try to use rebuttal to “finish up” the main argument, saying, “Counselor, do you have any rebuttal to offer?”
Second, even though you must use rebuttal to respond to statements that opposing counsel has made during the argument, you should prepare for rebuttal while you prepare your argument. You can reasonably anticipate many of the points that your opponent will make. In a moot court argument, you might identify the points to which you have a “clean” response — that is, a response that will not draw painful questions from the bench. In real life, of course, you should identify the points that are most crucial to your argument, for you must address those points even if they result in painful questions.
Plan ahead, even make an outline, and then, during the argument, note which points your opponent actually makes. You might even jot down a word or phrase from your opponent’s presentation to make your point more effective, e.g., “Your honors, counsel for Respondent stated that Ms. Miller’s attempts to establish a relationship with her father were ‘too little, too late.’ This time limit on family relationships is precisely what is wrong with Section 1409(a).”
Third, don’t sweat the small stuff. Unless an otherwise small error has legal significance in your case, rebuttal is not the time to point out that your opponent has given the wrong year in a case citation, confused the parties’ names, or made some other picayune error. This kind of fussiness hurts you more than it helps you.
Finally, make your points and then sit down. Although this advice holds true at all stages in the argument, it is particularly important on rebuttal. When you stand up to give your rebuttal, address the court and then tell it how many points you plan to make, e.g., “Your honors, I have two points on rebuttal. First, counsel for Respondent stated.... This fact is irrelevant because.... Second, counsel cited.... That case does not apply here because.... Thank you.”
Be aware that many courts do not listen passively to a rebuttal. Thus, you must be as prepared to answer questions during the rebuttal as you were during your main argument. It can be helpful, therefore, to let the court know how many points you intend to make; courts that have this knowledge may allow you to make all of your points, even if they have used up your time with questions.