Rebuttal.

• Jurisdiction: United States

Section 133. Rebuttal.—The first and undoubtedly the most troublesome problem in connection with rebuttal is whether, when you represent the party complaining of the decision below, you should get up at all for a second time. This is a problem—indeed it is frequently a dilemma—that cannot be solved by rote; in the end one's answer boils down to a matter of judgment—tempered by counsel's own temperament.

Advocates of great distinction and ability have suggested that the privilege of the appellant or petitioner to argue in rebuttal should be sparingly exercised. Mr. Justice Jackson wrote:

I would not say that rebuttal is never to be indulged. At times it supplies important and definite corrections. But the most experienced advocates make least use of the privilege. Many inexperienced ones get into trouble by attempting to renew the principal argument. One who returns to his feet exposes himself to an accumulation of questions. Cases have been lost that, before counsel undertook a long rebuttal, appeared to be won.⁵³

And the late Mr. William D. Mitchell, who was a distinguished Solicitor General and Attorney General, said in his review of the earlier version of the present work:

Discussing whether reply briefs or reply arguments are desirable, the author is inclined to resolve doubts by favoring their use. The conclusion might well have been the other way. It should be a rare case where either a reply brief or reply argument is justified. In his brief and oral argument an appellant should be able to cover adequately his case and anticipate his adversary's. Able judges of appellate courts do not wobble...