FREQUENTLY ASKED QUESTIONS ABOUT COUNTERING AN ADVERSARY’S ARGUMENTS
| Q. | This chapter shows several ways to distinguish cases: what are some other common approaches? |
| A. | Here are some common grounds for distinguishing an adverse case: argue that your case involves (1) a different procedural posture (e.g., one case was resolved on a motion to dismiss, the other followed a full trial); (2) different governing law (e.g., Nevada law applies here, California law applied in the other case); (3) a different standard of review or legal standard (e.g., another statute was upheld under rational basis but this statute must be assessed under strict scrutiny); (4) different facts (e.g., different language appears in a contract); (5) a different type of party (e.g., a municipal police officer might have immunity that a private security guard lacks); (6) different amounts of evidence (e.g., your client has six witnesses whereas the previous party had just one); (7) different language in the applicable statutes or regulations; (8) a different doctrinal or legislative history (e.g., that trademark and copyright law are not coextensive, so authorities from one field do not presumptively apply to the other); and (9) different policy implications (e.g., the consequences of letting someone sell fireworks are less than those of letting someone sell grenades). |
| Q. | How much time should I spend distinguishing an adverse opinion? |
| A. | As little as possible — usually. For all but the most influential cases, the more quickly and decisively you can discard the other side’s strong cases, the better. One to three sentences should usually suffice, and you can even bundle multiple authorities together and discard them by pointing out their common flaws. Indeed, when you spend lots of time on adverse authorities, you signal to the court that those cases are worth worrying about. But for key cases, be sure to provide enough detail to help the court understand that case and see why it should be disregarded. These battleground cases will sometimes require extensive discussion: a paragraph, a page, or even more. |
| Q. | Why did you discourage me from beginning paragraphs with phrases like “the other side’s cases are distinguishable”? |
| A. | That approach makes your argument sound defensive. Some lawyers prefer to state openly that they are about to rebut an opponent’s argument, which ensures that a reader realizes that he or she is about to read a counterargument. But that approach advertises the other side’s position, giving it air time. A more elegant approach phrases even your rebuttals in language that asserts your client’s affirmative point rather than merely countering the other side’s point. (E.g., “Even the three cases relied on by the defendant support our position.”) That approach tends to make a brief more persuasive and avoids calling attention to the other side’s argument. |
| Q. | Another lawyer did a great job distinguishing a case. Can I take material from her motion or brief? |
| A. | Although lawyers often borrow heavily from other lawyers’ motions and briefs, some judges blast this practice and call it unethical, even when lawyers recycle their own work. Some judges even steer these “cannibalization” matters to ethics boards. So, to protect yourself, change the wording and phrasing enough that the brief is transformed into your own work. This instruction is especially vital for any readers who are still in law school, as plagiarizing will subject student lawyers to academic penalties. |
| Q. | In addition to distinguishing adverse cases, should I always try to highlight the analytic flaws in adverse authorities? |
| A. | No. Minor cases are rarely worth discrediting. More generally, some of the “discrediting” will likely take place earlier in your brief as part of your affirmative argument (such as by invoking helpful authorities to show why a contrary result would be imprudent or reversible). |
| Q. | What do I do when a controlling authority is squarely against my client on an important point? |
| A. | The duty of candor to the tribunal requires you to bring the case to the court’s attention, even when the other side does not do so. You can and should try to distinguish the case. Also, you can dig into that case’s record to see whether the decision failed to consider any arguments that might help your client. And remember, cases are not controlling except on the issues that the prior court actually considered. You can also see whether an intervening act (such as a decision from an even higher court or from the legislature) abrogated the adverse authority. If these techniques all fail, try to transfer your case to another jurisdiction (in which the unhelpful authority isn’t controlling) or preserve the issue for appeal. Or settle fast. |
| Q. | Do I really need to rebut every argument that the other side makes? |
| A. | You should rebut any argument that you don’t want the court to accept as true. If you fail to rebut a point, the other side will claim that your silence is an admission that you have no response. Learn to bundle arguments and counter them quickly. |
| Q. | How sharply should I criticize other authorities (including a trial court)? |
| A. | Be firm but respectful. Avoid name calling. One court sanctioned a lawyer who (in addition to other misconduct) referred to the judge’s findings as “half-baked.” Instead, use procedural facts and sound reasoning to highlight the problems in the court’s approach. |