LawProse Lesson #311: Preemptive refutation.
In any good argument, it’s important to refute the obvious counterarguments that would naturally occur to an intelligent reader—even when you’re the first to argue. Why? Three reasons. First, doing so shows your readers or listeners that you’ve thought through the issue. The problem will have occurred to the judge, who may well view you with some skepticism if you don’t address it. What else are you trying to hide? Second, addressing your weak points first will make your stronger points harder for your adversary to overcome: if you’re successful in demolishing counterarguments, your adversary will either abandon them or drone on about them anyway. And third, the very fact of engaging in dialectical reasoning just makes your discourse that much more interesting. Where should you refute? If you’re the first to argue, you should do it toward the end of the middle part of your argument: you don’t want the arguments you’re refuting to appear either first or last. But if you’re the second to argue, the answer depends on how much you’ve been damaged by your adversary. If you’ve taken a serious hit, the undercutting must be immediate and powerful. If you’ve been damaged negligibly or not at all, just proceed as you would if you were the first to argue. To see the structural position of undercutting at work, study the many annotated tables of contents from first-rate briefs in The Winning Brief. Better yet, to learn more about this strategy and many others, sign up for the summer webinars based on The Winning Brief. Further reading: Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts 55–59 (3d ed. 2014). Garner, Legal Writing in Plain English 104–05 (2d ed. 2013). Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 15–18 (2008).