Suppose you are writing an Appellant's Opening Brief. In the trial court, your opponent made an argument against the position you are now taking. Should you deal with it in your Opening Brief - or wait to see how Respondent presents it in his brief, and then address it in your Reply Brief?
I usually deal with it up front. I put myself in the shoes of the appellate Justice. If she sees it for the first time in the Respondent's Brief, then Respondent's version will have more impact on her. She may be impressed with it, and it will fix in her mind. I then might have an uphill battle trying to convince her in my Reply Brief that the argument is wrong.
If, instead, I raise and rebut the argument in my Opening Brief, I can deflate the argument as soon as I state it, before it becomes implanted. When the judge later sees the argument again in the Respondent's Brief, she might well think "I've seen this argument already and I know the answer to it," and just skim over that part of the brief.
The downside to this approach is that it gives your opponent a chance to see your rebuttal and answer it in his Respondent's Brief. If, on the other hand, you didn't mention the argument in your Opening Brief, your opponent wouldn't know your rebuttal. You can then do your rebutting in your Reply Brief. Your opponent is not allowed to file a brief in response to your Reply Brief, so his only chance to rebut your rebuttal will be at oral argument - which is usually too late to have much effect on the Court's decision.
On balance, I usually go with the first option: I anticipate the argument in my Opening Brief. It enhances my credibility with the Court. It says, "I'm not hiding anything. Here are the arguments against my position - and my answers to them."
Here's a trickier problem. You think of a possible response to one of your arguments - one that your opponent did not mention in the trial court. Should you raise it and answer it in you Opening Brief?*
On the one hand, why anticipate an argument that your opponent might never make? Why run the risk that the court will be impressed by the argument?
In the trial court, anticipating your opponent’s argument might not be worth the risk. A trial judge is usually under time pressure and is less likely to see a legal argument that could have been made, but wasn't.
But the appellate court is quite different. The judges (and their law clerks) have more time to devote to each case, and they want to write opinions that look good. If the opinion is based on an argument that is logically defective or overlooks some statute or policy, the legal community will hold the judge responsible for this. She cannot pass the buck to weak appellate counsel. (As to certain types of arguments, she may rely on a rule that bars consideration on appeal of an objection or argument not raised in the trial court. This often arises where a party has failed to object to the introduction of certain evidence. Here, the appellate lawyer need not anticipate the argument, because it may not be made for the first time on appeal.)
Therefore, if you fail to raise an argument against you that might have been made, you run the very substantial risk that a judge or law clerk will see the argument, never hear the rebuttal to it you might have made, and rule against you on that issue. By failing to raise the argument, you effectively forfeit your right to participate in its resolution.
This is the single "fatal flaw" that afflicts most lawyers on appeal. They fail to meet the tough argument that is made (or could be made) against their position. By ignoring it, they hope the court won’t see it or be affected by it. Almost invariably, the court sees that this is the turning point in the case. The Court might well decide the case on this issue - with no input on it from the losing attorney.
At this point, you may be thinking "All right. Maybe I should deal with arguments against my position. But why do so in my Appellant's Opening Brief? Wouldn't it be better to wait to see if my opponent raises the issue in his Respondent's Brief? If he does, then I can answer it in my Reply Brief.”
There are advantages to this. If Respondent does make the argument, it allows you to respond to it as it is made by Respondent, rather than as you guess it might be made. But if he doesn't make it, you might have trouble fitting it into your Reply Brief - which is supposed to reply to arguments made in the Respondent's Brief. And anticipating the point in your Opening Brief enhances your credibility, by showing that you are not trying to hide anything or duck important issues. This helps present you as a fair person who is trying to help the judge come to the correct decision. This makes your whole brief more convincing.
by M.A.T Legal Director Myron Moskovitz
*If you are aware of a case or statute (rather than merely an argument) that is directly contrary to your position, you must mention it. The ABA Code of Professional Responsibility, Ethical Consideration 7-23, provides: "Where a lawyer knows of legal authority in the controlling jurisdiction directly adverse to the position of his client, he should inform the tribunal of its existence unless his adversary has done so; but, having made such disclosure, he may challenge its soundness in whole or in part."