Writing an Effective Opposition Brief

In litigation, attorneys write countless briefs at the trial and appellate stages, many of which involve opposing motions filed by an adversary, such as motions to dismiss, compel discovery, or for summary judgment. Effectively responding to these motions is critical to maximizing your chances of success. Below are tips on crafting an effective opposition brief:

1.    Use the Introduction to Win the Motion

First impressions matter. Use the introduction to persuasively and concisely argue why you should win. Start with a compelling theme that encapsulates your position. Clearly state the remedy you seek and apply the Rule of Three to outline three key reasons supporting your argument. Highlight your strongest facts and case law while exposing weaknesses in the adversary’s argument, such as omitted facts or precedent. Conclude the introduction by reiterating your theme and requesting a ruling in your favor.

2.    Reframe the Narrative

The adversary’s Statement of Facts will present a narrative that favors their position. In your opposition, take control by reframing the narrative. Highlight the most favorable facts, add vivid details where appropriate, and show—not just tell—why your version is superior. Avoid argumentative or hyperbolic language in this section but respond where necessary, such as by pointing out omitted or mischaracterized facts. Ultimately, aim to establish a narrative that supports your position while undermining the adversary’s credibility.

3.    Leverage Case Law

Judges heavily rely on case law to decide motions. Present binding precedent that closely aligns with your case and supports your desired outcome. Avoid over-explaining or overstating the precedent, and refrain from unnecessary string citations. Maintain credibility by accurately representing the facts and holdings of your cited cases. When necessary, distinguish unfavorable precedent or explain why it does not apply. Review the adversary’s cited cases and identify misstatements or omissions that weaken their argument.

4.    Problematize the Issues

The adversary’s motion will frame the legal issues in their favor. Your job is to add complexity and nuance to those issues. Present facts and legal authority demonstrating reasonable disagreement, showing that the adversary has failed to meet their burden of proof. For example, when opposing a motion for summary judgment, emphasize disputed material facts that preclude judgment. Use the burden of proof to your advantage, focusing on undermining the adversary’s position without overcommitting to proving your case outright.

5.    Highlight What the Adversary Omitted

Undermine the adversary’s credibility by pointing out what they failed to include. This could be relevant facts or precedents that, if considered, would favor your position. Emphasizing these omissions strengthens your argument and casts doubt on the reliability of the adversary’s brief.

6.    Anticipate and Address the Reply Brief

Anticipate the arguments the adversary will likely raise in their reply brief and address them proactively in your opposition. Excellent attorneys often save some of their strongest arguments for the reply brief. By preemptively countering these points, you strengthen your position and reduce the impact of their final arguments.

7.    Focus on Key Arguments

Avoid responding to every argument the adversary raises. Some attorneys will present numerous weak arguments, hoping something will stick. Do not fall into the trap of addressing every point. Instead, focus on credible arguments and devote the most attention to the strongest issues. If you must respond to weaker points, do so briefly. Remember, giving undue attention to a weak argument can inadvertently lend credibility to that argument.

8.    Maintain Professionalism

Avoid combative or hyperbolic rhetoric. Personal attacks on the adversary, prior court decisions, or excessive legalese detract from your credibility and weaken your position. Instead, rely on a clear, factual narrative and solid legal reasoning to persuade the court. Let your arguments speak for themselves, and avoid artificial devices that add no persuasive value.

By following these strategies, you can craft an opposition brief that not only counters the adversary’s arguments but also positions your case for success. The key is to stay focused, professional, and persuasive, leveraging the facts and law to your advantage.