Making Your Case The Art of Persuading Judges

If you’re the first to argue, make your positive case and then pre-emptively refute in the middle—not at the beginning or end.

It’s an age-old rule of advocacy that the first to argue must refute in the middle, not at the beginning or the end. Refuting first puts you in a defensive posture; refuting last leaves the audience focused on your opponent’s arguments rather than your own. So for the first to argue, refutation belongs in the middle. Aristotle observed that “in court one must begin by giving one’s own proofs, and then meet those of the opposition by dissolving them and tearing them up before they are made.”

Anticipatory refutation is essential for five reasons. First, any judge who thinks of these objections even before your opponent raises them will believe that you’ve overlooked the obvious problems with your argument. Second, at least with respect to the obvious objections, responding only after your opponent raises them makes it seem as though you are reluctant, rather than eager, to confront them. Third, by systematically demolishing counter-arguments, you turn the tables and put your opponent on the defensive. Fourth, you seize the chance to introduce the opposing argument in your own terms and thus to establish the context for later discussion. Finally, you seem more even-handed and trustworthy.

But anticipatory refutation has its perils. You don’t want to refute (and thereby disclose) an argument that your opponent wouldn’t otherwise think of. Avoiding this pitfall requires good lawyerly judgment.

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