Lead with Your Strength

We all know that, with some exceptions,[1] we should lead with our strongest argument. But, it’s not enough to lead with our strongest argument—we should lead with our strongest positive argument. By that, I mean the strongest argument for why we should win, not our strongest argument for why the other side should lose. This can be particularly difficult to do when we represent the appellee because the appellant has set out their arguments and our first instinct might be to show why their arguments are wrong. But that’s not leading with our strength, it’s an attempt to show our opponent’s weakness.

Take this example from the appellees' brief in Welling v. Weinfield.[2] In Welling, the Supreme Court of Ohio was asked to recognize the tort of false-light invasion of privacy.[3] After first arguing a procedural issue, that the case had been improvidently granted,[4] the appellees began the substantive argument like this:

As noted by the Wellings in their opening brief to this Court, a majority of the jurisdictions in the United States have adopted the false-light invasion of privacy cause of action. Brief of Appellants at 8. In The Denver Publishing Co. v. Bueno (Colo. 2002), 54 P.3d 893, the Colorado Supreme Court noted that 30 states had adopted the false-light invasion of privacy theory as part of their tort law. Despite that, the Colorado Supreme Court rejected the tort because it overlaps defamation to such a large degree and because its adoption might have a chilling effect on First Amendment freedoms. This Court should do the same.[5]

See how the appellees referred to and agreed with the appellant’s brief (giving appellant’s argument credibility) and then highlighted the strengths of the appellant’s argument:

• a majority of jurisdictions have adopted the claim;
• the Colorado Supreme Court noted that thirty states had adopted it.

It’s not until the next to last sentence of that opening paragraphing that we learn of the appellees' positive arguments: the tort overlaps with defamation and recognizing the claim could chill free speech.[6]

Here is how I might re-write the opening paragraph to lead with why the appellees should win:

This Court should reject the invitation to expand Ohio law. Defamation and false-light invasion of privacy claims largely overlap. And recognizing a false-light invasion of privacy claim might chill speech protected by the First Amendment. Instead, the Court should follow the reasoning of the Colorado Supreme Court. That court acknowledged the states that had recognized the claim but refused to do so because of the overlap with defamation and the possible chilling effect on free speech. The Denver Publishing Co. v. Bueno, 54 P.3d 893 (2002).

How would you re-write the opening paragraph to lead with the appellees' positive argument?

[1] An example of when this rule wouldn’t apply is when there is a procedural argument that logic dictates be addressed first.

[2] 866 N.E.2d 1035 (Ohio 2007).

[3] Id. at 1053.

[4] Robert E. WELLING, et al., Appellants, v. Lauri WEINFELD, Appellee., 2006 WL 1860670 (Ohio), 16.

[5] Id. at 17.

[6] Id.