How to Easily Counter Your Opponent's Brief-Writing Venom

Easily counter your opponent's brief-writing venom with a tip from Bryan Garner's The Winning Brief. Garner calls it "the deflating opener."

The deflating opener was developed by Judge Thomas Gibbs Gee after he resigned from the Fifth Circuit in 1991. According to Garner, "You simply collect the worst rhetorical outbursts from your opponent, recite them in summary form . . . and then move above and beyond."

Garner gives three examples of the method, the first by Judge Gee:

Short on nouns and long on adjectives, Plagiar's brief proceeds on the theory that the gross imbalance between the sanctions imposed by the district court and the well-intentioned procedural irregularity by which Schilling obtained discoverable matter can be equalized--and the scales leveled--by heaping imprecations on Schilling's side. And what a prodigious flow of pejoratives it is!

In what must be some kind of record, the 31 pages of Plagiar's brief contain more than 200 expressions bordering on the hysterical: the leader by all counts is abusive and its variations (17 appearances), next followed by permutations of the root word fraud (fraudulent, defrauded) (14), then extort (extortion, extorted) (13), and close behind it phony (12). Other terms of invective in hard use are bad faith (6), falsity (4), flagrant (4), and distort or distortion (3). To round it all off suitably, Plagiar refers to Relators' seemingly endless stream of perversions. Such a diatribe would be embarrassing in a barroom, let along this Court.

We concede defeat in the ranting contest--which we never entered--and turn once more and briefly to the facts, beginning with the uncontested ones . . .

Although The Winning Brief is expensive for a book about legal writing, it's packed with great information. Consider buying it.

Comments

[Dave!]

That is great! Is it best to counter a vitriolic brief with snark like that? I would have probably just ignored it altogether... but that would be so much more satisfying.

[Ted]

Garner's example is actually a little snarkier than I would use: "bordering on the hysterical," "embarrassing in a barroom," and "ranting" may well be enough to get a judge to complain that both sides are indecorous, and it's not at all rhetorically necessary to make the same point. Show, don't tell.