What do Supreme Court Justice Anthony Kennedy and horror-novelist Stephen King have in common? Both disdain adverbs. Lawyers who write appeal briefs may consider joining them. Continue reading
It took me a little longer to realize that the problem was the brief’s lack of a theme. There was no underlying focus or theory of the case that came through, at least not clearly. Continue reading
The South Carolina Supreme Court recently reaffirmed that an appeal begins long before a party files the notice of appeal. Continue reading
Justice Antonin Scalia and Bryan A. Garner cover this in their book, Making Your Case: The Art of Persuading Judges. In it, they argue that raising and answering counterarguments before your opponent makes them is essential because it:
- shows the judges that you have not overlooked problems with your case
- avoids appearing reluctant to deal with the argument
- puts your opponent on the defensive
- allows you to frame the objection
- builds your trustworthiness
Quoting Aristotle’s Rhetoric, the book further suggests that this occur in the middle of the argument as a dialectic in which you lead with your best argument first, raise the anticipated objection and refute it quickly, and end by showing why your first argument was correct.
Has anyone pulled this off? Or raised an argument against you that your opposing counsel overlooked? Please leave a reply or reach me at www.attorneyroberthill.com.
This post and the next several will cover ways to liven appellate arguments with classical rhetorical patterns or figures. Ward Farnsworth’s book, Farnsworth’s Classical English Rhetoric, is an excellent summary of these techniques. Continue reading