Wednesday, August 14, 2013

When is writing a legal brief like telling a child not to stick peanuts up his nose?

When you tell a child not stick peanuts up his nose, what happens?  He sticks peanuts up his nose, 'natch.  When you tell the court in your legal brief that the opposing party will no doubt make argument "X," what happens?  To your detriment, your opponent is now going to make that argument even though it never occurred to her before.  That's the most recent legal writing tip from Mark Herrmann - Chief Litigation Counsel at Aon, author of The Curmudgeon's Guide to Practicing Law and Above the Law columnist extraordinaire - in the following post.

Never Tell A Small Child Not To Stick Peanuts Up His Nose

. . . .

“Never tell a small child not to stick peanuts up his nose.”

Why does that matter?

Or maybe I should start with a more basic question: What the heck does that mean?


You’re writing an opening brief. You know what the other side’s best response will be to one of your arguments. So you drop a footnote saying: “In response to this point, the other side will surely say X. But X is wrong for the following three reasons. . . . ” And then you wrestle the other side’s argument to the ground.

. . . .

Never tell a small child not to stick peanuts up his nose. If you tell a small child not to stick peanuts up his nose, you’ve guaranteed yourself a trip to an ear, nose, and throat specialist, so the doctor can pry six peanuts out of the kid’s nose.

“It’s the same with opposing counsel. You know a great argument that the other side should make. If you don’t mention the argument, the other side may miss it. But if you include your footnote preempting the other side’s best argument, you’ve guaranteed that a big chunk of the other side’s brief will wallow in your great argument. Be careful when you try to preempt the other side’s arguments; you may simply be telling a young child not to stick peanuts up his nose.”

. . . .

If you were 100 percent certain that the other side would make an argument, then you might preempt it. If you were concerned that the other side might miss the argument, but the court would think of it, and you’d lose without having had a chance to brief the issue, then you might preempt the argument. But you always thought long and hard before anticipating the other side’s arguments, for fear of telling a small child not to stick peanuts up his nose.

But Mark's not done there.  He's got two more great tips for aspiring litigators.  Click here to see what they are.


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