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February 13, 2024

The Art of Rebuttal

By: John M. Baker

Two experienced Supreme Court advocates – Kannon Shanmugam of Paul Weiss and Daniel Geyser of Haynes & Boone - and the Hon. Shirley Troutman of the New York Court of Appeals, provided an engaging session at 2023 AJEI on “The Art of the Rebuttal.” The session, moderated by Michigan attorney Gaëtan Gerville-Réache, provided insights not only about how especially talented advocates approach rebuttal, but also about how to sort important and less-important topics for the rebutting attorney to address.

Neither Shanmugam nor Geyser tends to compose their rebuttal in advance. As Shanmugam explained, “the fundamental task is for both sides to sit there and listen very carefully to what the judges are saying and what opposing counsel says. . . It’s just so important to process what’s happening in the oral argument, and not to come in and say things that don’t fit in as the argument goes on.”

In Geyser’s words, “you’re listening to every word of every question – and [considering] why is a judge asking that question.  I don’t have any notes for an affirmative argument. I use a blank sheet and write down the questions as they’re coming. I think of what points seem to be most critical, having heard the questions and arguments. Then, when you’re a minute or two away -- and you don’t know whether you’re going to be interrupted or not – order them in order of priority.”

Moderator Gerville-Réache asked how to deal with situations where opposing counsel has just referenced a fact that’s outside the record or misstated a fact that triggers an urge to correct it. Geyser answered that “it depends on whether it really matters or not.  It’s about winning, and you’ve got a brief moment of time. Kill it immediately if it could really affect the outcome of the case – otherwise not."

For structural reasons, appellants’ counsel should expect to hear new things in the arguments immediately before rebuttal. As Shanmugam explained to appellants’ counsel, your opponent (counsel for the appellee) hasn’t had a chance to respond to the reply brief or to your opening argument, so when the appellee finally gets a chance to speak, their argument is their ‘sur-reply,’ which makes your rebuttal a ‘sur-sur-reply,’ which is a challenge.”

All panelists discouraged advocates from using the scarce time for rebuttal to pick “the low-hanging fruit” – that is, trying to emphasize easily-made points. Shanmugam said, “those will make you sound good, but won’t move the court in making the decision.”  As Judge Troutman explained, “we expect you to respond to weaknesses in the argument of your opponent and to respond to things that hurt your own case. . . There are times when there’s a real question about which way the questions are going and your answer may be dispositive.”

Shanmugam encouraged advocates to focus on what are really the most important points to make, and to choose two or three of them for rebuttal.  He added, “in some sense, the way you approach rebuttal depends on if the outcome feels in doubt.  If so, you want to go to the issues that are in doubt. . . . if the court’s struggling with how to get to an outcome, say ‘here’s how we think you should draft the decision.’”

The presentation included a video replay of portions of an oral argument to the New York Court of Appeals in a matter that was recently decided. In that case, an appellant’s attorney used her rebuttal well. She succinctly and effectively responded to what opposing counsel had just argued. As Judge Troutman explained, the attorney pointed to misstatements, but in a setting in which every misstatement could lead to a favorable outcome. Geyser was impressed with how she answered a question ”head on,” and not only provided the immediate answer to it, but supplemented that answer in a way that made it clear how it helped her client.

During the period for audience questions, the panel was asked whether waiving rebuttal is ever a good move.  Shanmugam answered that in intermediate appellate courts, he’s seen it happen, but that it’s particularly hard for a new advocate to do.  Geyser recounted an instance in a criminal case in which the court’s questions should have made it clear that it was likely to reverse, but the attorney for the government took the lectern for rebuttal anyway.  One of the judges then seized the opportunity to ask particularly aggressive hypotheticals, including one which exposed a hole in the government’s case.  Geyser’s point to the audience was that “if you’ve won, then get out of the way.”

John M. Baker

Greene Espel PLLP

John M. Baker is a founding partner of the Minneapolis law firm Greene Espel PLLP.  He is a 1983 graduate of the University of Iowa and a 1986 graduate of the University of Michigan Law School.  He has practiced for over 35 years, primarily focusing on public law.  He has argued over thirty times in various state and federal appellate courts, and was a board member of the ABA’s Council of Appellate Lawyers. 

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