Tag Archives: appeal

Briefs on Appeal: Where’s the Theme?

I recently read almost 10 pages of an appellate brief before learning what the appeal was about. Even then, I did not know why the author thought his client should win.

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

Opening Briefs – Meeting Anticipated Objections on Appeal

This post is the last one in a series on rhetorical devices that one may use in arguing an appeal. This one covers prolepsis, the art of anticipating objections and meeting them.

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.