Rapoport’s Rules for writing a critical commentary are:
- You should attempt to re-express your target’s position so clearly, vividly, and fairly that your target says, “Thanks, I wish I’d thought of putting it that way.”
- You should list any points of agreement (especially if they are not matters of general or widespread agreement).
- You should mention anything you have learned from your target.
- Only then are you permitted to say so much as a word of rebuttal or criticism.
Properly modified, this is good advice for lawyers dealing with legal arguments.
A very common failure is to misconstrue or misunderstand an opponent’s arguments. This is easy to do, because of the psychology involved.
We all want to win for our clients. Most of us have egos. When we see the law a particular way, we tend to think we’re right and get locked into that way of thinking. We tend to reject any alternative as somewhere between flawed and outright stupid. We expect it to be wrong. This corrupts our thinking.
It’s important to fight this tendency. To meet an argument properly you need to understand it. If you misunderstand it, you’re unlikely to be able to formulate an effective counter-argument. If your judge listens to your argument thinking ‘He just doesn’t get this’ you’re unlikely to be effective.
Being an advocate is different to writing critical commentaries. But you should start from the same place: a determined effort to fully understand the argument being made. And Rapoport’s rules are a good approach. In particular it’s worth trying to formulate, in your own mind, the best possible version of your opponent’s argument. Then meet it.
As Dennett points out, this can also be an extremely effective form of advocacy:
The fairer the criticism seems, the harder to bear in some cases. It is worth reminding yourself that a heroic attempt to find a defensible interpretation of an author, if it comes up empty, can be even more devastating than an angry hatchet job.
Of course, this can be taken too far in the context of legal argument. A philosopher’s job is to get at the truth. An advocate’s job is to argue their client’s case — truth is a matter for the judge, who is helped by having two sides fiercely arguing their sides. In some cases the best approach may be to reformulate your opponent’s argument in the most convincing way, so you can convincingly knock it down. Sometimes that would be doing your opponent’s work for them.
Similarly, rules 2-4 should be regarded as guidelines to bear in mind, not a structure for your submissions. A judge will want to know where you agree with the other side, but you don’t need to put this at the front. Most judges, won’t be very interested in what you’ve learnt from your opponent.
A potential variation on this is deliberately mis-stating an opponent’s argument. It can work. If you can convince a judge that your opponent’s argument is actually a different, worse argument than the one they’re really making, he might deal with the weak argument rather than the strong one. But this is a very advanced strategy (as well as being on the dark-arts side of things). If you’re a good enough advocate to pull this off in the face of a judge trying to get to the bottom of a case and an opponent trying to make their argument — while staying on the right side of the ethical line — you’re either overestimating your skills or you don’t need my advice. If you fail, you’ll create all the problems of having really misunderstood the argument.
The same general approach can also be effective in cross-examination. I once watched Ian Gatt QC cross-examine a witness by determinedly trying to help him to give a plausible explanation of events that matched the contemporaneous documents and didn’t involve the witness having repeatedly lied. Mr Gatt QC explored everything. Each failure was met with a courteous, almost regretful, rebuttal of the latest account. Then more attempts to help the witness explain.
The overall impact was of watching the witness being fed into a terribly polite meat-grinder. Because there was no reasonable explanation. The witness had lied, again and again. And it was obvious that, had there been any other explanation, it would have come out.