When the other side has a powerful potential argument, but you get to go first, then you have a strategic call to make. Do you use the opportunity to get there first, address the issue before they can, and steal their thunder? Or do you wait them out, see what they have, and respond only after they’ve raised the issue? That question will come up in many scenarios. If you’re a plaintiff, then you are always deciding how much of the expected defense to address in opening and in your case. Or if you are a defendant, you may be fairly sure that the plaintiff will develop an issue in their case that they didn’t cover in their opening, and you’re wondering if you should cover it in yours. More narrowly, when you are putting on your own witness, you always need to decide how much of the expected cross-examination gets attention in your direct. Prediction can be a big part of persuasion.
I’ve always been a proponent of, “When in doubt, cover it first” and the idea that preemption is generally an advantage. I formed that view early as a debater and a debate coach, and in the legal arena it still stands to reason: The side that plants its flag first on an issue has an advantage in setting the terms and influencing the audience. Still, it doesn’t make sense in every situation, and it can be a strategic call. So in this post, I thought I would flesh out my thinking on when it does and doesn’t make sense to preempt their arguments. In my view, these are the tests.
When Their Point Makes a Solid First Impression
Think of the fact-finders’ mindset when they first hear the case’s main argument: Is it likely to lead to head-nodding, or is it likely to be confusing, a stretch, or a dud? If its in the latter categories, then you can safely wait on the other side to wade into it first. But if it is likely to create a favorable initial reaction, even if its a wrong reaction, then cover it. There is a power in first impressions, and if you have the ability to set the stage before the other side can make its arguments, then it is typically a good idea to do that.
When There’s No Mystery Over Whether They’ll Bring It Up.
Getting into the other sides’ heads can be difficult, and there are no guarantees that you are right about their thinking. At the same time, one thing that modern extended discovery has done is to give you ample opportunities to see their position. If your assumption about their stance is a theory that you have come up with simply in your due diligence of sussing out their possible best-case arguments, then don’t assume they’ll advance it. On the other hand, if it is a point that they’ve brought up in motions or in deposition after deposition, then you can assume its part of their case.
When Even If the Other Side Doesn’t Bring It Up, the Judge or Jury Will
It is important to remember that you aren’t just jousting with the other side; you are also engaging with your target audience. Even if the other side doesn’t bring up an important point against you, it is possible that the jury or the judge will still have it on their minds. In the case of a bench trial or hearing, for example, there is a real chance that your judge is more sophisticated than your opponent. If there is an argument that is likely to be weighing on your audience’s minds, then you’re better off addressing it.
When You Have a Great Answer
Even when the argument itself doesn’t have a high chance of being a game-winner at the end of the trial, it can still make sense to preempt it when your answer is particularly compelling. Arguing the point first gives you a chance to clearly knock down something of theirs, and that can be a good look. The point may not be essential for them, but the refutation can still build credibility for you. As long as you aren’t creating and then viciously attacking a straw man, answering the point still helps you.
Or Sometimes, Even When You Don’t Have a Great Answer
Advocates sometimes avoid preempting an argument when they’re not entirely sold on their own answer. But that lack of faith isn’t necessarily a good reason to wait — after all, your response isn’t going to be better later on. In that situation, giving your best response even when it isn’t the perfect response still capitalizes on first impressions and shows that you aren’t afraid of the argument. You may not have a knockout response, but you’re still able to point in advance to the best answer the facts allow, which may help to at least minimize the impact of their argument.
Generally, I have found that attorneys’ reluctance to preempt an argument is often driven by questions like, “Am I giving their point more power than it would otherwise have?” or “Am I appearing defensive or overly concerned about this point?” Those questions can, of course, be legitimate. At the same time, I think advocates can be overly cautious on preempting. Generally speaking, having a window to lay down your paint while the canvas is still relatively clean is a very powerful opportunity. So if you can, go ahead and steal their thunder.
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