Final Argument #5 - Dealing with your Opponent's Positions
This is the fifth episode in the series on Final Argument. Note we don’t use the term ‘Legal Argument’ because this Substack is all about the facts – not the law. This episode focuses on what your opponent has said or will say when their turn comes around.
In the adversarial dispute resolution system, there is always another side to the story. Throughout this Substack, we have pushed the idea that your task is to bring the decision-maker to your way of thinking. It’s a case of ‘us vs. them.’ We presented the techniques of thinking like your opponent in Case Analysis, Scenes, and Inoculation, where you prepared your witness for cross-examination. Now, we offer strategies to deal with your opponent’s position in Final Argument.
Final Argument resembles a school debate. One advocate presents, and then the other counter-presents. The first to go should have a pretty good idea about what the other will say, having watched the other side’s pre-trial activities, Opening Address, motions, objections and evidence. The justice system tries hard to avoid surprises, although some will occur in almost every case.
There are two basic techniques to deal with your opponent’s case and positions. The first is to weave the specific positions and evidence into your argument, dealing with each as you reach it in the recital of your positions. In both techniques, treat your opponent’s positions as Otis Redding and Aretha Franklin advocated - with RESPECT.
The second is to complete your own case and then deal with their case. Which route you take depends both on the case and your own preferences. In a criminal case, the prosecution usually has the most evidence and the highest burden of proof. That suggests focusing on ‘their case’ if you act for the defence. The prosecution will likely focus on their own case first and confront defence challenges near the conclusion. In civil plaintiff-defence cases, this boundary is not so stark.
Of course, counsel can take both approaches. Deal with opposition positions as they arise, and then take on the opposition’s theme and main points all at once near the end.
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