Posted Jan 01, 2013 08:50 am CST
In high school and college debate, an opponent’s argument that goes unresponded to—a “dropped argument”—is judged as conceded. Hence in a scholastic debate, one common strategy is to spread the argument: Debaters will fire off quick points at motor-mouth speed in hopes that the opponent won’t be able to respond to all of them in the strict time allotted. Under the elaborate rules for scoring debates, dropped arguments can torpedo your performance.
We all know, of course, that scholastic debate differs from real-life litigation. But how, exactly? When, if ever, can a litigator bypass responding to points made by an opponent? And when might it spell trouble? I posed these questions to several seasoned advocates.
Judge Harry T. Edwards of the U.S. Court of Appeals for the District of Columbia Circuit sagely responded: “I do not think there is a simple answer to your question.” He’s right. It’s a thorny problem. More from Judge Edwards shortly.
Jonathan Massey of Washington, D.C., a 1985 champion of the National Debate Tournament and now a principal with Massey & Gall, started his law career by enthusiastically pointing out his opponents’ dropped arguments. But experience has made him wary of the strategy.
“When I was a young lawyer, I often tried the dropped-argument strategy in hearings and arguments, telling the judge that the other side had failed to rebut a point here or an argument there. That approach never seemed to get me anywhere. And I would always be frustrated when courts would sua sponte come up with better arguments than my opponents, as if they were doing the other side’s homework.”
Things changed for Massey. “It gradually dawned on me that the legal system is not a contest like debate, and that despite reference to the ‘adversary system’ and rules about waiver and preserving objections, most judges were disinclined to decide cases on the basis of dropped arguments,” he says. “I think the reason is that there is a strong public interest in getting decisions ‘right.’
“In a common-law system, decisions contribute to the growth of the law and have collateral effects on third parties. A judge simply doesn’t have the luxury of deciding a case on the basis of a dropped argument if the result would be an erroneous precedent,” Massey says.
Then again, much depends on context. The law specifically provides that arguments can be forever waived (or dropped) in certain circumstances. Hence, as 1990 national champ David Coale of Lynn Tillotson Pinker and Cox in Dallas points out, Texas law can be downright punitive to defendants who don’t plead correctly in response to allegations of long-arm jurisdiction.
“A party who fails to answer ‘drops’ the allegations about service, but unless those allegations are letter-perfect they are of no legal effect,” Coale says. “So part of the picture is that the effect of a ‘drop’ depends on the substantive matter at issue.”
There’s the crucial issue that Judge Edwards points out: Who’s dropping the argument? If it’s the party with the burden of persuasion, it’s truly a dropped argument (and waivable). If it’s the party without the burden, and that party doesn’t respond, it’s better termed an unresponded-to argument (usually not waived).
Here’s what Edwards says: “If a movant carries the burden of proof and it is clear that the movant has not met it, a nonmovant may choose to say little or nothing. For example, in summary judgment practice, a responding party who does not carry the burden of proof need only point out to the court that the other side has not met its burden; the responding party is not required to offer specific evidence to counter general assertions from the other side that plainly do not satisfy its burden of proof.”
What’s never safe is to wait until the reply brief to satisfy the standard—whether it’s a trial court motion or an appeal. Courts routinely hold that an argument raised for the first time in a reply brief is waived. The same is true for an argument raised exclusively in a footnote.
When it comes to pivotal facts, it’s never wise to offer no response. Judge Edwards again: “If Party A asserts that it is clear from the record that A+6x47-D>242, and this matters, and Party B says nothing in response, the court will often say that A+6x47-D>242 is uncontested. We will not necessarily say that it is ‘conceded’ but we surely may say that it is ‘uncontested.’ ”
Because a trial court or administrative agency is making a record, an unrebutted factual allegation may well be viewed as a concession (see, for example, Rule 56(e)(2) of the Federal Rules of Civil Procedure). So facts, when unresponded to, are dangerous and require special attention.
On appeal, this dropped-argument point can turn—as so much turns—on how you’ve framed the issues.
Steven A. Hirsch of San Francisco’s Keker & Van Nest advises: “If you have framed the question properly, you can characterize many or all of the other side’s arguments as being a single argument that misses the point—the point as you have framed it. It then becomes unnecessary to address each misguided variant of their argument, because all variants share the same fatal flaw. You thus address all opposing arguments succinctly but without fear of waiver, and without getting bogged down in rebuttals of the most marginal arguments.”
He adds that “sometimes you have to group opposing arguments into discrete baskets according to some shared failure to address the question as properly framed; but the principle remains the same.”
There are doubting Thomases of course: those like Bryan Neal of Thompson & Knight in Dallas, who believes that “no argument—no matter how weak—can be safely ignored.” He worries about the willingness or ability of busy generalist judges to sort the wheat from the chaff. Neal’s colleague Stephen F. Fink agrees: “I come down on the side of the traditional view. Without losing sight of the full range of factors that actually affect judicial decision-making, assume that the court wants help in reaching a correct decision using principled reasoning and try to address every issue the other side raises.”
When pressed for examples of broadly phrased dismissals of opposing arguments, Hirsch responds, “I looked for examples of briefs in which I deliberately did not respond to an argument at all on the theory that the argument was too silly or too closely related to other arguments to warrant a separate response.
“Although I feel that I must have done this at some time, I can’t find an example. Either I’m more diligent than I thought or my search technique is flawed,” Hirsch says. “I definitely use the ‘take control of the question’ approach that I wrote about earlier to condense and consolidate my responses to opposing arguments—but not, apparently, to eliminate such responses altogether.”
One thing my experts all agreed on is that formal debate bears little resemblance to legal advocacy. I suppose they also agree that some type of response, perhaps at a high level of generality, is the safest approach.
On this view, Bob Barnes of Allen Matkins in San Diego self-deprecatingly admits, “I generally do the cowardly lawyer thing: ‘Appellant raises several other issues—A, B and C—all of which are without merit and none of which deserves a response.’ That’s cowardly because I’m not really allowing it to go unresponded to.” But his approach is truly more prudent than pusillanimous.
In my own writing, I’ve some-times used the broad-phrasing technique through the figure of speech called paralipsis—in the words of Webster’s Second, “a passing over with brief mention so as to emphasize the suggestiveness of what is omitted.” The method appears in my review of Lynne Truss’ Eats, Shoots & Leaves: “I confine to this paragraph a sampling of Truss’ benightedness,” along with enumeration of 20 of her errors in one paragraph.
This technique is often used to good advantage in a brief. For example, “Williams challenges the factual statements made in Jones’ brief, which is rife with misstatements (they must be inadvertent). Three illustrations will suffice to illustrate the problem: Jones cites officer William Smith as having answered a question with no (Jones brief at 7), when in fact the answer was yes (R. 617 [same citation as Jones used]); Jones has dropped the word not from the affidavit of officer Malcolm Downsad (Jones brief at 8; R. 1,410); and Jones has prejudicially misattributed his own testimony to the corporate defendant’s representative, Jean Kelly (Jones brief at 10; R. 814). Suffice it to say that Williams disavows Jones’ ‘fact’ statements without burdening the court with correcting them all.”
This is mean, you say? No. It’s a venerable technique used by shrewd lawyers from time immemorial: paralipsis. It should be a household word among lawyers.