Write On, 18 VTBJ, Winter 2018-#22

AuthorBeth McCormack, Esq.
PositionVol. 39 3 Pg. 22

WRITE ON — A Good Rebuttal is Like Obscenity

Vol. 39 No. 3 Pg. 22

Vermont Bar Journal

Winter, 2018

A Good Rebuttal Is Like Obscenity: You Know It When You See It

Beth McCormack, Esq.


It is Appellate Advocacy season at Vermont Law School; that time of year when our second year law students research, brief, and deliver an oral argument on a pending Supreme Court case. Each year, many members of the Vermont Bar graciously donate their time reading briefs, judging oral arguments, and then giving feedback to our students. One thing I have noticed in listening to feedback during my years of teaching Appellate Advocacy and coaching Moot Court is that everyone has an opinion on the rebuttal part of the oral argument. Sometimes a single panel of judges can produce multiple views on whether a student should or should not have used the rebuttal, how much time should have been reserved, and whether the rebuttal was effective or not. Given this panoply of different views on rebuttal, I often struggle when asked by students what makes a good rebuttal, often left answering: a good rebuttal is like obscenity, you know it when you see it.1

As a result of this long-standing rebuttal controversy, I began researching articles from the experts on rebuttals. However, I was able to find few articles devoted to rebuttals; most mentioned them in passing in articles centered on oral arguments. However, from the available research, I have collected five tips for delivering a stand out rebuttal. I then tested these tips by reviewing several recent Vermont Supreme Court Oral Arguments to see if the advocates adhered to them.

Rebuttal Basics

In most appellate courts, after the Petitioner/Appellant has delivered their argument, the Respondent/Appellee delivers their response. Ideally the Respondent or Appellee responds to the arguments the Petitioner/Appellant made. The rebuttal is the Petitioner/Appellant’s chance to address Respondent/Appellees’ argument. In other words, the rebuttal is a chance for the Petitioner/Appellant to have the last word before the judges make their decision. However, ineffective or improper use of rebuttal can backfire and leave the panel with a negative impression of the Petitioner/Appellant, or their argument.

Depending on court rules and local custom, there are generally two ways for Petitioner/Appellant to take a rebuttal. Petitioner/Appellant must reserve time for rebuttal at the beginning of the argument, or stop their argument early, reserving the rest of the time for rebuttal. In the latter scenario, Petitioner/Appellant only succeeds in receiving rebuttal time by “stemming the tide of the justices’ questions before his or her allotted time has elapsed,” which, depending on the panel, can be impossible.2 As most readers already know, the Vermont Supreme Court adopts this second approach.

When making a rebuttal, a short road-map with signposting words is usually helpful, so the Judges know what is coming. For example, you might begin like this: ”Your honors, I have two points on rebuttal. First, counsel for Respondent stated . . . This is irrelevant because . . . . Second, counsel cited . . . That case does not apply here because . . . .”3 Once you have made your points, sit down. Sometimes the simple close: “Thank you” can do the job perfectly.4

Keep in mind that judges will often ask questions during rebuttal (just as they would during the main argument), and therefore, your plan can easily be derailed. As noted, a rebuttal roadmap may help with this, as the judges may be eager to hear what points you have identified as crucial. But like in all aspects of oral argument, the best laid plans often go awry. To make the most of the rebuttal, consider the following 5 tips.

Tip # 1: Sometimes the Best Use of Rebuttal is Not to Use It

Judge Frank H. Easterbrook, a long time judge on the United States Court of Appeals for the Seventh Circuit offered this advice: “The very best use of rebuttal time is not to use it. The judges are ever so happy when you say, ‘I have nothing further, Your Honor.’”[5] Judge Easterbrook reports that of his approximately 15 cases before the Supreme Court as a Petitioner, he gave a rebuttal in only one of those cases.6 Judge Easterbrook believes that lawyers do not waive rebuttals nearly enough.[7] (Incidentally, he says the same thing about the use of reply briefs, referring to them as “repeat briefs.”). According to Judge Easterbrook, “if you’ve done your job well, you anticipate all of the arguments the other side is going to make. And you address them, not in the form of counter punching . . . but in your affirmative case.”8

This advice is apropos for appellate argument rebuttals because in the case of the oral argument, you’ve had your brief and the other side’s brief, so “you know perfectly well what the other side is going to say.”9 In short, Judge Easterbrook suggests crafting your argument in a way that makes rebuttal unnecessary.10 He suggests...

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