5.3 DEALING WITH YOUR OPPONENT’S ARGUMENTS

A common dilemma for brief writers is whether and how to address their opponent’s arguments. Some advocates believe that acknowledging the existence of an opponent’s argument in any way is a sign of weakness that should be avoided.

I would also like to recommend that all advocates distinguish contrary authority, even in their opening brief. If there is bad precedent out there for your case, you can assume your adversary will cite it to us, or we will independently find it. If the first time I see an adverse case is in the answering brief, then my initial reaction is that the appellant does not have a good explanation as to why that case is inapposite. While a response in the reply brief may dispel this initial impression, it may not. Therefore, by failing to mention contrary precedent in the opening brief, the advocate makes that precedent more weighty than it perhaps should be.¹¹

Professor Kathryn Stanchi has analyzed the growing body of social science research that has investigated the impact of including negative information in various rhetorical situations.¹² Professor Stanchi concludes that, beyond following the ethical requirement to address directly contradictory authority,¹³attorneys must be very careful when deciding whether and how to bring up negative arguments.

Addressing negative authorities is a part of addressing your opponent’s arguments, but it is not the only part.

First, determine the exact locus of the disagreement. The heart of the familiar CREAC formula — Rule, Explanation, and Application — can help you to do so. Perhaps you and your opponent disagree as to the particular rule that must be applied. In that circumstance, you may have to add one or more sections to your argument, using a “rule choice” analysis as described in Section 5.1.2(b).

For another issue, you may agree as to which rule should be applied but disagree as to what that rule means, perhaps because you disagree about which authorities best illustrate how that rule should operate. In that circumstance, the explanation section of a particular unit of discourse argument may be longer because you may need to address not only the significance of cases that you believe best illustrate how the rule operates but also cases that your opponent might proffer. You should take care to address what the authorities do not mean or do not say, and to justify your decisions. You should not make your opponent’s arguments, as in this example:

BAD EXAMPLE The Respondent may argue that the McGuffin case applies here. Respondent may argue that McGuffin stands for proposition that...

Instead of spending valuable time on the opponent’s actual argument, make your position as to that argument evident from the beginning. If you are writing a responsive brief or are otherwise certain that your opponent will be making a certain point or bringing up a certain authority, you may wish to tie the authority to your opponent, as in this example:

GOOD EXAMPLE Any argument by Respondent that McGuffin applies here is inapposite.

This type of argument has risks, particularly if you are writing the opening brief.¹⁵In the alternative, you can simply attack the negative authority. This type of argument is a method of portraying yourself as an educator.¹⁶For the court’s benefit, you are describing the cases that are relevant and those that are not relevant:

GOOD EXAMPLE McGuffin does not apply here for two reasons. First... Depending on the amount of detail needed, you may want to devote a paragraph or even a point-heading section¹⁷to the principle that a case or a series of cases is inapposite.

Finally, as to some issues, you and your opponent may agree as to what the rule is and to what it means, but disagree as to how it applies. In that situation, your rule application section would need to be longer because you would need to provide more detail as to the significance of certain facts that promote your point of view and the insignificance of facts that your opponent might use to promote his or her argument.

Your second step is to determine if your opponent is making or may make an argument that you cannot address within the confines of your argument as it is currently structured. Look at each of the opponent arguments on your list and determine whether your argument contains contradictory analysis. Sometimes the analysis may be indirectly contradictory: Two rules are mutually exclusive, and your argument does the best possible job of explaining why and how a particular rule applies in your case. At other times, your argument may directly contradict your opponent; instead of just saying that rule A applies, you will argue that rule B does not apply, or argue that even if it does apply, it does not result in a finding for your opponent.

You may, however, identify opponent arguments that you have not addressed directly or indirectly, and you must decide whether to do so.

This kind of argument may be less likely to be rule based. Instead, you may be making a direct assertion that your opponent’s argument misinterprets the law or the facts. Instead of explaining the meaning of a rule by illustrating how it has been applied in the past, you will, in a way, be providing evidence¹⁹for the truth of your assertion about your opponent’s argument. For example, you may be arguing that a particular interpretation of a statute is wrong. The evidence to support that assertion could be legislative (e.g., discussing legislative history or statutory language), judicial (describing on-point cases from appropriate jurisdictions), or empirical (citing studies that support the thesis behind the assertion).

Thus, depending on your assertion, your “evidence” may come from the record, from extra-legal sources, or, as in most CREAC arguments, from relevant authorities that have applied a particular rule. For example, if you are arguing that a court misinterpreted a rule or a line of cases, your evidence for that assertion would likely consist of a correct analysis of those cases, perhaps showing how other courts had applied that rule. When making arguments of this type, choose your words carefully. If you are petitioner, it may be tempting to attack the lower court for its holding. It might be more tactful and more fruitful, however, to characterize your attack as an attack on the assertion behind the holding rather than on the court that made the holding. Thus, instead of saying, e.g., “The Eighteenth Circuit erred when it found that the Mousse Statute applied here,” it might be better to say, e.g., “Arguments that the Mousse Statute applies are inappropriate.”

I close this section with two warnings about dealing with your opponent’s arguments. First, addressing negative authorities almost never means that you should begin your argument by addressing negative authorities. Professor Stanchi’s research shows that “it is clear that beginning with refutation decreases persuasive value.”²⁰ Second, addressing negative arguments or authorities does not require you to attack opposing counsel or the courts below.²¹ Instead of questioning the integrity or intelligence of opposing counsel, note a possibly tenuous connection and then refute it — e.g., “Although this statute, admittedly, governs some types of employment relationships, it is inapposite here. The statute’s language....” You increase your credibility when you accord appropriate respect to your opponents and the judiciary.