The Aikido Technique for Rebutting Opposing Authority

• Publication year: 2002
• Pages: 65

31 Colo.Law. 65 Colorado Lawyer 2002.

2002, January, Pg. 65. The Aikido Technique for Rebutting Opposing Authority

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65

Vol. 31, No. 1, Pg. 65

The Colorado Lawyer
January 2002
Vol. 31, No. 1 [Page 65]

Departments
The Scrivener: Modern Legal Writing
The Aikido Technique for Rebutting Opposing Authority
by K. K. DuVivier
2002

A larger and stronger adversary lunges toward you, teeth bared, eyes blazing. Do you respond with equal fury, hoping in some way to match him? Or do you simply remain calm and centered, using your adversary's own energy to overpower him? The calm approach is the Aikido way, and this same approach can be an effective way of responding to negative authority in an opponent's brief

Ignoring Opposing Authority

One way to respond to opposition is to ignore it. The result of such inaction may be the same in legal battle as it is in physical combat—assured defeat. Although you need not counter every authority, if your opponents have addressed a significant case, you must respond. Otherwise, readers may assume you are conceding your opponents are correct and hand them victory

Distinguishing Opposing Authority

Another way of responding to contrary authority is to resist head-on by distinguishing a case. You may have heard the advice: If the facts are in your favor, pound on the facts If the law is in your favor, pound on the law. And if neither is in your favor, pound on the table. The same advice can be applied here. First, you can distinguish a case on the facts. No two cases have exactly the same facts, so a distinction based on facts is always an option. However, make sure the differences between your client's facts and those in the precedent are legally significant.

Second, you can distinguish a case by focusing on the law. Perhaps you can find a split of authority to show that a troublesome precedent has not been universally followed by the courts. Another approach is to focus on policy: a policy that makes sense in the context of property law may not translate well into tort law. In addition, the case may be inconsistent with trends in that or related legal fields.

Third, you can distinguish a case by pointing to weaknesses in its pedigree. Is the case out of date or decided by a divided court? This last approach can work if the arguments are strong or coupled with one of the other approaches—for example, out of date...