As we discussed last month, the deflating opener, also called the swift rejoinder, can take the wind out of an opposing brief replete with insults and overblown rhetoric—in one or two paragraphs.
In a similarly efficient fashion, a paralipsis can counter a host of misstatements of fact or mistaken assertions.
A paralipsis is “a passing over with brief mention so as to emphasize the suggestiveness of what is omitted,” according to Webster’s Dictionary. Its use allows the legal writer to avoid becoming mired in correcting every inaccuracy in a brief riddled with errors.
Here is an example from the third edition of The Winning Brief:
“Williams challenges the factual statements made in Jones’s brief, which is rife with misstatements (they must be inadvertent). Three illustrations will suffice to illustrate the problem: Jones cites Officer William Smith as having answered a question ‘No’ (Jones brief at 7), when in fact the answer was ‘Yes’ (R. 617 [same citation as Jones used]); Jones has dropped the word not from the affidavit of Officer Malcolm Downsad (Jones brief at 8; R. 1,410); and Jones has prejudicially misattributed his own testimony to the corporate defendant’s representative, Jean Kelly (Jones brief at 10; R. 814). Suffice it to say that Williams disavows Jones’s ‘fact’ statements without burdening the Court with correcting them all.”
The Winning Brief author Bryan Garner describes the use of paralipsis as “a venerable technique used by shrewd lawyers from time immemorial.” He contends the figure of speech should be a “household word among lawyers.”
It also may not be necessary to counter every argument made by your opponent. If refraining from doing so will not risk conceding a point that is part of your client’s burden of proof, and if you’ve “framed the question properly, you can characterize many or all of the other side’s arguments as being a single argument that misses the point—the point as you have framed it.” That advice comes from Steven A. Hirsch of San Francisco, as quoted in The Winning Brief.
“[T]hen it becomes unnecessary to address each misguided variant of their argument, because all variants share the same fatal flaw,” Hirsch says. “You thus address all opposing arguments succinctly … without getting bogged down in rebuttals of the most marginal arguments.”
On a separate note, a shout-out goes to reader Leslie Wellbaum, a former staff attorney at the First District Court of Appeal and teacher of grammar, syntax, and usage, for catching the erroneous wording, much more preferable, in October’s column.
“One thing is simply preferable to another,” she explains. “The comparison is inherent in the word.”
Thus, more preferable is redundant, and much more preferable, even more so. Either one is incorrect.
Attorney Savannah Blackwell is a former news reporter who covered government and politics for more than a decade, mostly in San Francisco. She can be reached at email@example.com. Follow her on Twitter at @SavannahBinSF.