The Art of Persuading Judges
If you’re arguing after your opponent, design the order of positive case and refutation to be most effective according to the nature of your opponent’s argument.
Aristotle advised responding advocates to rebut forcefully in their opening words:
If one speaks second, one must first address the opposite argument, refuting it and anti-syllogizing, and especially if it has gone down well; for just as the mind does not accept a subject of prejudice in advance, in the same way neither does it accept a speech if the opponent seems to have spoken well. One must therefore make space in the listener for the speech to come; and this will be done by demolishing the opponent’s case; thus, having put up a fight against either all or the greatest or most specious or easily refuted points of the opponent, one should move on to one’s own persuasive points.
This point applies to those who oppose motions, to respondents, and to appellees. If an opponent has said something that seems compelling, you must quickly demolish that position to make space for your own argument.
Caution: As a general matter, this advice applies to refutation of separate points that make your affirmative points academic—not to your opponent’s contesting of your affirmative points themselves. If, for example, your case rests on the proposition that a particular statute creates a claim, you would not begin by refuting your opponent’s argument that no claim was created; you would present your own affirmative case to the contrary first. Suppose, however, that your opponent has argued, quite persuasively, that the court lacks jurisdiction and that the statute of limitations on any claim has expired. Judges don’t like to do any more work than necessary. If they have a fair notion that they will never have to reach the question whether a claim was created, they aren’t going to pay close attention to your oral argument on that point. And we have known judges to skip entirely over the merits section of the appellee’s brief to reach the response to the appellant’s jurisdictional or other non-merits argument. You must clear the underbrush—or, as Aristotle puts it, “make space”—so that the court will be receptive to your principal argument.
Having made that space, however, you must then fill it. Proceed quickly to a discussion of your take on the case, your major premise, and your version of the central facts. As put by a perceptive observer, in the context of an appellee’s argument:
Nothing could be a more serious mistake than merely to answer the arguments made by counsel for the appellant. These arguments may be skillfully designed to lead counsel for the respondent off into the woods or they may lead him there unintentionally. The proper line of attack for counsel for the respondent to adopt is to proceed to demonstrate by his discussion of the law and the facts that the judgment is right and that it should be affirmed. All other considerations are secondary.