You Made Your Case – The Art of Persuading Judges

Opening Brief

If yours is the opening brief, the points in your outline should follow the order or argumentation described earlier: strongest point first, unless logic demands otherwise, etc. At the end of each of those separate points, refute the counter-argument that you think your adversary will bring forward. Don’t put your refutation in a single section, requiring you (and the judge) to recall each of your arguments in turn.

Responding Brief

If your brief is filed second, begin by “clearing the underbrush”—responding to your opponent’s seemingly persuasive points that would entirely bypass your principal point—for example, a persuasive claim of waiver or lack of jurisdiction. Then proceed in the order normal for an opening brief. But use some judgment. If your adversary’s points are visibly weak—if they are unlikely to have closed the judge’s mind to your principal point—answer them later.

There is, truth to tell, a division of informed opinion about the organization of a responsive brief. Some think an appellee should arrange points just as the appellant did, i.e., without regard to preliminary refutation. We stick with Aristotle, who urged a quick demolition at the outset whenever possible (see $9). We’ve too often seen a judge flip back to the end of the appellee’s brief, looking to see whether there is any refutation of the appellant’s point that, if true—as it seemed to be —would make the appellee’s first point utterly academic.

Antonin Scalia and Bryan A Garner

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Antonin Scalia and Bryan A Garner

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