Comments on: Do You Play Offense or Defense?

By: Natasha Cole

Natasha Cole — Wed, 21 Jul 2010 00:40:07 +0000

I want to learn how to argue. I was told that the defensive way is wrong the approach. I was informed to be on the offense. In a typical argument how do you play the offense?

By: Melissa Greipp

Melissa Greipp — Tue, 03 Mar 2009 19:32:50 +0000

Alison,
I also strongly agree with you that it’s best to stay on the offensive in a moving party’s brief. Strategically, the moving brief has the strength of position, which gets weakened if a party goes on the defensive. I also would hesitate to characterize an opponent’s arguments before reading them in a brief.

By: Peter Friedman

Peter Friedman — Tue, 03 Mar 2009 01:41:29 +0000

Alison, I agree 100% with you and always felt in my twelve years as a commercial litigator in NYC that explaining why you are right is far more effective than arguing why the other side is wrong. And why the other side is wrong can almost always be posed in terms of why you are right. The closest I’d let myself get to articulating the other side’s argument would to sometimes at the end of the paragraph(s) making my point, I’d then say, since my point is right, there could be no argument that . . .

By: Alison Julien

Alison Julien — Sun, 01 Mar 2009 21:01:00 +0000

Andrew,
My post was really about how to address counter-arguments in writing, and even more specifically, in a principal brief. When you have a pretty good idea that there are particular authorities that are problematic for your client and helpful for the opponent, I think it is most often a mistake to ignore them in the principal brief and address them only in a reply brief.

By: Bruce Boyden

Bruce Boyden — Sun, 01 Mar 2009 05:59:40 +0000

I typically went for an "offense"-style approach in practice that went something like this: immediately after concluding my strongest arguments, I begin a new paragraph. "Thing is not to the contrary," or "Thing held that [something I don't want]. However, Thing is inapposite here." It just seems punchier, and shorter. Also, it's not just opposing counsel you have to worry about. You have to worry about the judge's reaction as he or she reads it. I find myself reading other people's briefs/articles occasionally and wondering, "What about obvious counter-argument X?" The longer I wonder this, the more annoyed I get with the author. That's not something you want to have happen to the judge as they read your brief.

By: Andrew Golden

Andrew Golden — Sun, 01 Mar 2009 01:03:03 +0000

Here’s my problem with your offense vs. defense approach: it seems to only work when you’re writing briefs (which may seem like an obvious moot point, but I figure you’re talking about arguments in general rather than purely written ones). In my Trial Advocacy classes, one of the first things we’re taught is not to say something like, “My opponent is going to tell you that X.” If opposing counsel says nothing about X, it’s not going to look like he slipped up; it’s going to look like you lied to the jury or the court. It doesn’t even matter that, realistically, no one heard that and assumed you were stating a fact; they’ll still feel betrayed.

In doing trial prep and writing motions, I prefer to play (to continue the sports analogy) a “bend but don’t break” defense. In other words, I like to prep to anticipate the vast majority of the counter-arguments that my opposition will make so as to be ready in case they use it. However, I also like to keep my mouth shut and wait and see what they ACTUALLY argue. Granted, all my internships have been defense-side work, so it’s easier there to get the last word in. But it’s been my experience that in court you’ve got a very limited amount of time to make your point to the judge and/or jury, so it’s best to stick to bullet points and play the “why are you right regardless of what argument the other side makes?” game until such time as a point’s made that you need to refute.