Don't let your opponent dictate the organization of your arguments.

Here’s the situation: you’re responding to a brief in which the opposing party makes three arguments. They’ve put their arguments in order of strength, starting with the best, going down to the weakest (as I’ve argued they should do). So, in your response brief, do you have to respond to their arguments in this order?

Not a chance. They’ve organized their brief in the way that’s best for them, and you should organize your brief in the way that’s best for you. If their first argument is stronger, then don’t start there. Start with their weaker arguments—especially if this means you can quickly dispose of them.

Let’s use an example. Suppose the opposing party has started with a complex textual analysis that will require some serious work to unpack and rebut, but their second argument has relied on outdated precedent. Start with the second argument and explain to the court why the other side’s argument clearly falls flat because it relies on bad law. That way, you can clear the space you need to analyze the first point without your opponent’s weaker argument lingering in the background.

This also has the advantage of pointing out to the court that the opposing party has made some downright weak arguments. As I explained in my previous post, credibility is huge, which is why you don’t want to put a weaker argument before a better argument. If you can begin by showing the court that the other side has made a weak argument, the other side has taken a credibility hit, meaning that the court is more likely to see you as the more trustworthy advocate. Judges want to get the answer right, and they want to know which attorney is going to help them get there. Your goal is to show why you’re the attorney the court can trust.

However you choose to organize your arguments, be sure to lay out the organization at the outset. This point deserves its own post, so I won’t belabor the point. But if the opposing side has structured their arguments A, B, and C, then if you want to respond in order of B, C, A, make that clear to the court before you dive in. The last thing you want to do is confuse the court by shuffling the ordering without any notice.