| 1. | Build your affirmative argument before you confront the other side’s arguments. |
| 2. | When your brief or motion raises multiple issues, build your first affirmative argument (as described in Chapter 4) and then counter the other side’s points on that issue. Repeat this sequence for each of the other issues. |
| 3. | Rebut every nontrivial point that the other side makes. Otherwise, you should brace yourself for opposing lawyers to trumpet your “implicit admission” or “tacit acknowledgment” that their unrebutted points are correct. Learn to counter minor points quickly and decisively. |
| 4. | Find some way to show that adverse authorities do not dictate your dispute. Point out, for instance, that an adverse case involved a different law, a different jurisdiction, different facts, different legislative history, different procedural posture, and so on. You must distinguish controlling authorities to avoid dooming your case, but you should also distinguish important persuasive authorities lest those cases beguile your judge. |
| 5. | In addition to distinguishing an adverse persuasive authority, diminish it, such as by undermining the court’s reasoning, by showing that many courts have criticized that opinion, or by revealing the woeful policy implications that the opinion, if followed, would produce. |
| 6. | Attack your opponent’s research, such as by pointing out flaws in its discussions of authorities and by calling attention to the absence of support for any of its arguments. |
| 7. | When your opponent is a repeat offender, bring up his or her past sins. For example, discredit a lawyer who files the same lawsuit repeatedly or a litigant who has raised the same claims (or violated the same law) repeatedly. |
| 8. | Search for evidence that the opposing party (or its counsel) has previously agreed with your position. |
| 9. | If you are appealing a case, do not attack the judge; instead, undermine his or her reasoning firmly but respectfully. |
| 10. | Avoid asking courts to overrule a case. Do so only when necessary, and distinguish the adverse precedent, too — or else you are essentially admitting that the precedent bars your argument. |