When Abraham Lincoln was asked his secret for winning lawsuits, he reportedly replied that he understood the opposition case better than the opposition understood its own case. Lincoln was articulating a basic truth about trial strategy: that winning involves the art of immunization and refutation. In simplest terms, this means persuading the judge and jury that your argument makes more sense than the opposition’s – something you can only do when you know the opposition’s case as well as your own. Yet immunization and direct refutation are two important aspects of persuasion that -- while understood by many -- are mastered by few.
In refutation, you reveal weaknesses in your opponent’s argument in a way that makes them unacceptable to the judge or jury. To prepare a good refutation, consider all possible points you can use to undermine your opponent’s case. Use “blocking” to identify the best ones. Blocking involves writing the opponent’s main points in an outline or diagram form, followed by a list of refutation points. Once you have blocked your opponent’s argument, you can more easily select the points you need to refute and the method of refutation that will work best. Be selective in choosing what to refute: you want to go with the strongest points and not over-saturate your listener.
Methods of refutation can include immunization, direct response and rebuttal. Immunization involves introducing your own case’s weak points before your opponent has the chance to introduce them for you. Proper immunization shows your listener that you have considered all sides of the case – both sides’ strengths and weaknesses -- and are convinced that your position is the only one that makes sense. When you are the first to present an argument, provide an explanation of any week points in your case up front. This often has the added benefit of putting your opponent off balance so that he or she cannot present an effective response.
There are two basic types of immunization: forewarning and inoculation. Forewarning involves alerting your listener to what you anticipate your adversary will argue. In a personal injury case where contributory negligence is a defense, you might argue: “The defense will contend that Mr. Smith was also negligent and that his contributory negligence bars his right to recover from the defendants.” Alerting your listener to the opposing point of view prepares your listener to absorb the opponent’s attack without abandoning your point of view.
Inoculation involves forewarning followed by some explanation of why the adversary’s argument is defective. This fuller explanation can be reserved for a subsequent time, such as during rebuttal, but it is sometimes better to give a full explanation at the outset of your argument. This is particularly true when you know the defense is going to raise a crucial issue in the case and you want your listener to hear your version and explanation first.
Before you attack your opponent’s argument, however, you must first have built a superior case of your own. Almost all refutation involves not only destroying your opponent’s view of the case but also substituting your own theme or version. Exceptions are limited but do exist. For example, if you are arguing that your opponent has failed to satisfy a burden of proof, you may not need to present a counterpoint.
When you create a positive theory you do more than simply give your listener a more believable alternative scenario. A positive theory may also help persuade the judge or jury that the other side’s burden of proof has not been met. In a case where contributory negligence bars recovery, a plaintiff may want to emphasize the defendant’s own negligence as she argues that she was not contributorily negligent. The theory here is that the stronger your argument regarding the defendant’s negligence, the less likely the judge or jury will find the plaintiff’s negligence contributed to the event.
As you study your opponent’s case, consider whether the opposing side is staying true to the facts or running contrary to the evidence. If your opponent’s argument plays fast and loose with documents or testimony at key points, prepare to demonstrate this to the listener. This is a key part of refutation, and it is important in these instances to use a direct and forceful approach: “Don Smith never testified that the light was green. Let us review what Don Smith actually said.” That said, do not select insignificant factual errors for attack. Doing so may annoy your listeners and come across as a waste of time.
As part of your direct response, you may also find opportunities to challenge your opponent’s evidence. For example, you can show an opposition witness’s bias by revealing that an alibi witness is the defendant’s mother or spouse, or that the government’s witness is testifying as the result of a plea bargain.
You may also find opportunities to demonstrate that your opponent’s version of the case is improbable or that it is based on irrelevancies or minor evidence that has been given undue weight. Additionally, you can also point out where significant evidence has been ignored by the other side. Take the following example: say that during argument in a civil case for assault, your opponent argues that the plaintiff was the first aggressor. However, your opponent avoids sharing the fact that before arriving at the scene, the defendant went home and searched for an old hunting knife that he brought with him to the scene. Clearly, you would argue that your opponent ignored the very conduct that shows the defendant’s intent.
There are many more ways to refute opposing points in a trial. In my book, The 12 Secrets of Persuasive Argument, I review them in more detail. The bottom line is, study your opponent’s case carefully. It could be the difference between winning your case and losing.