In high school and college debate, an opponent’s argument that goes unresponded to—a “dropped argument”—is judged as conceded. Hence in a scholastic debate, one common strategy is to spread the argument: Debaters will fire off quick points at motor-mouth speed in hopes that the opponent won’t be able to respond to all of them in the strict time allotted. Under the elaborate rules for scoring debates, dropped arguments can torpedo your performance.
We all know, of course, that scholastic debate differs from real-life litigation. But how, exactly? When, if ever, can a litigator bypass responding to points made by an opponent? And when might it spell trouble?
What’s never safe is to wait until the reply brief to satisfy the standard—whether it’s a trial court motion or an appeal. Courts routinely hold that an argument raised for the first time in a reply brief is waived. The same is true for an argument raised exclusively in a footnote.
Because a trial court or administrative agency is making a record, an unrebutted factual allegation may well be viewed as a concession (see, for example, Rule 56(e)(2) of the Federal Rules of Civil Procedure). So facts, when unresponded to, are dangerous and require special attention.
On appeal, this dropped-argument point can turn—as so much turns—on how you’ve framed the issues.
Steven A. Hirsch of San Francisco’s Keker & Van Nest advises: “If you have 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. It then becomes unnecessary to address each misguided variant of their argument, because all variants share the same fatal flaw. You thus address all opposing arguments succinctly but without fear of waiver, and without getting bogged down in rebuttals of the most marginal arguments.”
He adds that “sometimes you have to group opposing arguments into discrete baskets according to some shared failure to address the question as properly framed; but the principle remains the same.”
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Steve Hirsch helps clients reframe and develop their cases for success in the federal and state appellate courts. That process can begin long before any appeal is filed, with dispositive trial-court motions and significant motions in limine, or during the post-trial motion phase, when issues are being teed up for appeal.