The gentle art of impeaching adversaries
In the popular mind, impeachment is associated with presidents and other high officials. But to the lawyer, it’s also associated with witnesses—especially with showing that a witness, on an earlier occasion, said something inconsistent with that witness’s current testimony. The more wildly inconsistent, the better.
Because the word impeachment can refer more broadly to discrediting the truthfulness or accuracy of anyone, I’d like to discuss here an argumentative technique that effective legal writers often use: quoting your adversaries to discredit the reliability of their arguments. As an advocate, of course, you want your own stances to be unimpeachable. The best way to damage an adversary’s positions when responding is to quote that person’s own words back to the judge or jury and then to demonstrate how inaccurate they were.
The way Aristotle phrased the idea in his Rhetoric is that you must refute the adversary’s arguments that might have made a good first impression: “You should ... make room in the minds of the audience for the argument you are going to offer; and this will be done if you demolish the one that has pleased them. So combat it—at every point in it, or the chief points, or the successful points, or the vulnerable points, and thus establish credit for your own arguments.” (I’ve closely paraphrased page 236 of Lane Cooper’s 1932 translation titled The Rhetoric of Aristotle.)
The Wright stuff
An excellent example appears in Charles Alan Wright’s U.S. Supreme Court briefing in Mississippi v. Louisiana, finally decided in 1995. As Justice Anthony Kennedy wrote in the opening line of the dispositive opinion, “Like the shifting river channel near the property in dispute, this litigation has traversed from one side of the docket to the other.” In navigating the case to a successful conclusion, professor Wright—of Federal Practice and Procedure fame—represented the state of Mississippi against the state of Louisiana in a dispute over the ownership of a small island in the Mississippi River. When responding to arguments, Wright relentlessly impeached his adversary, but always in a tone of calm detachment.
The initial reply brief contains many choice illustrations of the technique. Here, for example, note how Wright cites precise pages of inaccuracies:
Louisiana attributes to the district court findings that the district court never made. On page 1 of its brief, and again on pages 3 and 32, Louisiana contends that the district court found that Stack Island had “washed away entirely” or “disappeared.” In fact, the district court never made any such finding. The reference cited by Louisiana is to the portion of the trial judge’s opinion that stated Louisiana’s position. The truth of the matter is that the district court rejected Louisiana’s position and made exactly the opposite finding: “The court does not accept the theory of the Louisiana parties.”
See how quickly the undercutting takes place here? The very first sentence asserts the adversary has said something erroneous; the second sentence quotes the erroneous statements; and the next four sentences, all short, prove beyond doubt the record does contradict the adversary’s statements. This swiftness of the undercutting is crucial to its success.
Wright used the same technique in the very next section of his brief. The pattern is identical in the paragraph that follows—a coolly stated conclusion, without invective, then a quotation with a reference, and then an immediate and verifiable disproof:
In several instances, Louisiana mischaracterizes what the record shows. For example, at page 18 of its brief, Louisiana asserts that the map set forth at [joint appendix] 163 shows “the tracks of navigation as of December 1881.” The truth of the matter is that the “track of navigation” reflected on that map was drawn in by Louisiana and was not on the original map.
A big part of the effectiveness of Wright’s technique—which occurs more than a dozen times in this brief—is the absence of indignation. You won’t find conclusory, modifier-laden phrases such as completely false, wholly disingenuous, utterly misleading, impervious to the truth, lying about the record, baseless readings, bald-faced deceits and fanciful prevarications. Rather than expressing his own indignation, which would be irrelevant, Wright calmly evokes indignation from the reader.
This is no small matter. Many litigators suffer from these faults of hyperbole. It hasn’t registered in their minds, and therefore in their performances, how much more effective it is to understate than to overstate.
At the end of his reply, Wright concludes by making his own positive point on his side of the equation. He sounds like the voice of reason:
We stand on what we said on this issue in our opening brief. It cannot be the law that the jurisdiction of a district court turns on what result it reaches on the merits of a dispute that is before it. If land is unquestionably in one state, the courts in another state are without jurisdiction to affect the title to that land. But if the issue is whether land is in one state or another, and both the states and the private persons with claims to the land are parties to the suit, the court in which the action is pending has jurisdiction to make a final disposition of the matter, whether it finds that the land is in its state or in the other state. The power to decide an issue is the power to decide it either way.
In short, his brief is anything but a series of “that’s not so” statements. He dismantles the opposition’s arguments, demonstrating their fallibility while making his own irresistible points.
Countering the Rambo writer
A particularly difficult problem these days is answering an argument that is rife with pejorative characterizations—so many that it’s impossible to set the record straight on each of them without getting down into the muck yourself.
The best strategy for answering empty bombast is what I’ve long called the “deflating opener.” It lays out examples of the opponent’s exaggerations before calmly, in one fell swoop, dispatching them. Russell Love, a splendid lawyer in Seattle, used this technique in a reply brief in support of his motion for summary judgment on behalf of an insurance company. The Washington state superior court judge to whom the brief was directed was so taken with Love’s opener that he read it from the bench before granting summary judgment.
Hang on to your hat for this:
Lacking in authority and avoiding serious analysis of the issues, Bartleby [I’ve fictionalized the name] resorts to an onslaught of hyperbole to obscure the facts and plug its analytical gaps. And what a volcanic flow of hyperbole it is!
According to Bartleby, the company “delayed its investigation” (eight appearances); “dragged its feet”; “allowed Bartleby’s claim to fall through the cracks of bureaucracy”; “continually violated claims-handling deadlines” (four appearances); “clearly violated” the statute at issue; “engaged in bad faith” (four appearances); ... and “violated standards for coverage denial.” And while Bartleby’s (unexplained) prejudice is “evident,” the company’s arguments are “without merit,” “specious,” and supported by “scanty submissions.” All the while, though, Bartleby ignores what it must prove to establish its coverage and bad-faith claims. While Bartleby’s approach is concededly imaginative, the company suggests a return to the few facts and the relevant law to resolve the issues raised by the cross-motions.
Again, the tone is calm. The writer’s persona is unflappable. This type of deflating opener obviates any perceived necessity of exchanging epithets. You refute without sounding as if you’re engaging in a squabble suffused with ill will. You impeach by turning the belligerent opponent’s bluster to your own advantage.
This article ran in the Setpember-October 2019 issue of the ABA Journal with the headline “Point Taken: The gentle art of impeaching adversaries.”
Bryan A. Garner is the editor in chief of the new 11th edition of Black’s Law Dictionary, author of The Winning Brief, the co-author of Making Your Case (with the late Justice Antonin Scalia), and the president of Dallas-based LawProse Inc. Find him on Twitter: @BryanAGarner