By: Dr. Ken Broda Bahm –
For all the careful attention and planning that goes into a good opening statement story, and a strong closing argument structure, the rebuttal can end up sounding like an afterthought — especially when it is an afterthought. Composed on the fly while listening to your opponent’s argument, your rebuttal can often be reduced to a simple shopping list of the points you’d like to make, without the glue of clear structure or strategy to hold the message together. While you might think that all a rebuttal needs to do is “clean up” any points that still need more attention, structure remains an important part of the message, especially when we are talking about the last words that your decision makers will hear from you. The problem with the “and another thing…” structure is that it does nothing to help you prepare, it doesn’t aid the audience’s comprehension, and it doesn’t promote persuasion. As Supreme Court Justice Antonin Scalia and Bryan Garner note in their recent book, “the scatter-shot approach is no more effective [in rebuttal] than anywhere else.” Even if your shopping list does give you a clear sequence, if you made that list while your opponent was speaking, then as Lubet’s Modern Trial Advocacy points out, you are replicating your opponent’s structure, not your own.
Whenever you get a chance to give a rebuttal, then let it be the best and last word that your decision makers will hear on the point. Ultimately, a good rebuttal comes as a result of having a clear structure in advance, fitting the most important points that need to be refuted to that structure, and adding in a number of strategies designed to keep you on the offensive rather than the defensive. Below, we review a number of critical rebuttal strategies, ending with an example rebuttal creatively developed from the general fact pattern of Liebeck v. McDonald’s Restaurants, the infamous “hot coffee” case.
An early consultant, Dr. Richard Crawford,emphasized three basic points about rebuttal: You should anticipate what you will be talking about (because it is rarely a surprise), prepare in advance, and keep it short. We want to supplement that list with a number of specific strategies and tools, and — fair warning — this is a longer and more comprehensive post than is typical for Litigation Postscript. To avoid falling victim to our own version of “…and another thing” structure, we want to group our comments in a nice mnemonic way:
- The Outside: Your overall rebuttal structure
- The Inside: The tools you should use within each rebuttal point
- The Downside: What to do when you are losing the point
- and The Upside: How to make sure you are playing to your strengths
I. The Outside: Your overall rebuttal structure
In order to escape the fate of being a simple list, your rebuttal should incorporate what we call the “S.O.S.” structure. Put simply:
You should start with a Skeletal structure…
…that focuses on your Opposition’s failings…
…and ends with what is Still true, or undenied by your opponents.
The skeletal structure should be drawn from your closing, or in some cases even your opening statement story. That should be a starting point. In judicial hearings, that starting point can also be supplied by the structure that you followed in your briefing, as long as that creates a simple and strategic sequence for you to follow. Naturally, you will want your “skeleton” to be a “shrunken skeleton” to reduce the structure so that it focuses only on those areas that are most critical for your case, and those areas that will benefit from greater attention in the rebuttal. Armed with that sequence, you should add in rebuttal points while listening to opposing counsel’s argument. Importantly, though, responses are fit into your structure, not theirs. When you stand for rebuttal, preview that structure in order to establish a context for the significance of each rebuttal point. Within each category provided by that skeletal structure, your focus should be on where your opponent has failed to substantially damage your main points. Ultimately, you will want to end with a list of points that are still undeniably true, despite their best efforts to deny them.
Thinking from the outside of your rebuttal structure, you will want to focus on what most needs a response (your opponent’s strongest points), identify your strongest responses, and consider the logical flow and transitions that move from one to the next in order to end on a high note.
II. The Inside: The tools you should use within each rebuttal point
Once you arrive at each of your main points, there is still a critical role to be played by structure. Enumerating your points is one tool that is both simple and vital. Numbers keep both you and your listeners on track. There is also a simple sequence that every debater learns called “four-step refutation,” and it applies to any situation where you are responding to the thoughts of another.
Step One: Signpost (My opponent says…)
Step Two: Argue (However, what is really true is…)
Step Three: Support (And the reason you can believe that is…)
Step Four: Impact (And this is important because…)
You will notice in the example below that each response to the defense follows this sequence. When put together, it sounds natural, and it helps to keep both you and your listeners focused. When advocates are immersed in the argument (as you will be in rebuttal), it is very easy to leave off the first and the last steps, because those seem very obvious to you. But remember that your listeners are not in the same frame of mind. Emphasizing where you are and why it matters is critical to keeping your rebuttal on track.
In addition to focusing on four steps of refutation, it is also a good idea to keep four types of refutation in mind. Refuting, after all, can mean a lot more than “say it ain’t so.” The following is our list of ways to answer a point.
Method One: Denial (That isn’t true… )
Method Two: Minimization (That is true, but not a big deal…)
Method Three: Outweighing (That is true, but something else is more important…)
Method Four: Turn (That is true, and it supports my side of the argument….)
Importantly, three of these methods admit to some truth in the other side’s argument, but re-characterize the claim so that it is no longer an important point against you. In the rebuttal example below, you will that “denial” is used to address the point on an industry standard for coffee temperature (no, it isn’t true that McDonald’s coffee is as hot as competitor’s), while the point about the obviousness of coffee being hot is minimized (yes it is assumed to be hot, but not as hot as McDonalds’ coffee). Finally, the point that Ms. Liebeck should have moved faster in removing her clothing is turned on the company (The company’s claim that a seventy-nine year old woman should have removed her clothing in seven seconds just shows how unexpectedly dangerous this product is when served at scalding temperatures). Keeping all the methods in mind can be an important mental tool for keeping your options open.
III. The Downside: What to do when you are losing the point
To be realistic, we need to acknowledge that sometimes in rebuttal you are faced with opposing arguments that have the disadvantage of being…well, at least somewhat true and persuasive. In those cases where you are facing the tougher side of the argument, the rebuttal can be a challenge. Just re-hashing an argument that you know isn’t gaining traction can result in further loss of credibility. To avoid that, you need to embrace a different approach in rebuttal.
We suggest two general approaches when you know that you are on the “downside” of an argument.
1. Argue from agreement. That is, start with what the two sides agree on. That gains crebility, and let’s the decision-maker see you as something other than totally wrong.
Before jumping in to defend the positions that are having trouble holding water, it helps set the stage by emphasizing a few things that everyone agrees on, as long as they are relevant. E.g., Everyone here agrees that Ms. Liebeck sustained massive injuries, and will need continued medical care in the future.
2. Frame your position as a compromise, a mid-point between what your adversary supports and something more extreme that you aren’t advocating.
The middle position is inherently more persuasive, so think of something on the outside that would help to place your solution in the middle. E.g., It would be one thing to say coffee should never be sold that hot, but that is not what we’re saying. Instead, we’re saying that if it is unexpectedly hot, then there should be a warning.
The other important piece of advice is to not spend too much time on your losing arguments. Time and attention on your weaknesses only emphasizes their importance. As Kenny Rogers says, “you gotta know when to hold ’em, know when to fold ’em, know when to walk away, and know when to run.”
IV. The Upside: How to make sure you are playing to your strengths
Mr. Rogers’ sentiment notwithstanding, sometimes you do want to “count your winnings while you’re sitting at the table.” That is, you do want to leave your audience with some tangible reminders of your strengths. Richard Crawford advised attorneys that they should keep in their back pocket a list of points that will not and cannot be denied by the other side. And it is very strong to end by returning to this list of facts that are still true, even after your adversary’s attacks. We call this list the “Untouchables” with reference to Elliot Ness, or M.C. Hammer (depending on your generation).
Another way to end on a strong point is to apply an analogy (you’ll see a running metaphor in the McDonalds example below that borrows liberally from one of our previous posts) or a useful quotation. The words Mark Twain are often a good way of memorably contrasting the two positions in a rebuttal:
“What gets us into trouble is not what we don’t know.
It’s what we know for sure…that just ain’t so.”
Ultimately, the rebuttal is a very important moment that deserves some careful advance thought and planning. It should always be short, strategic, and structured, and it should never be impulsive or purely reactive. Taking the luxury to carefully craft a rebuttal, as well as the artistic license to simplify some of the facts for our example, we wrote the following plaintiff’s rebuttal in the hot coffee case, in order to illustrate the advice we offer above:
Example Rebuttal: Liebeck v. McDonald’s Restaurants
Do you remember that scene in The Wizard of Oz where the dog Toto interrupted the Wizard’s speech by pulling back the curtain on a man furiously working levers and wheels? At that point, there was a big puff of smoke along with the command to “Pay no attention to the man behind the curtain.” It is the same distraction-based approach that you just heard from McDonald’s Restaurants. They spent so much time on Ms. Liebeck, that the message is “Pay no attention to the man behind the curtain.” Pay no attention to what McDonald’s knew about its stated policy to serve at scalding temperatures that permanently damages skin. Pay no attention to McDonald’s failure to warn that its coffee was not just hotter, but sixty degrees hotter, than beverages sold by comparable restaurants. Pay no attention to the fact that no one – much less a seventy-nine year old woman — would have time to remove her clothing fast enough to avoid third degree burns.
And of course, we expect you to focus – to some extent – on Ms. Liebeck. That is part of your job as jurors. But it is also your job as jurors to pay attention to the man behind the curtain – or in this case, the corporation behind the counter – McDonald’s. Because they had the greater knowledge and therefore the greater power in this case.
Remember the four questions that I offered earlier – the four ‘hows’? How hot? How quick? How would you know? and How do you get a corporation’s attention? Let’s go back to those to look at what McDonald’s says in response.
One, how hot? How hot is McDonald’s coffee compared to what the average person would expect? The company says that they are within the range of other restaurants. But that is simply not true. What their informal survey showed is that most restaurants serve coffee over 130 degrees. Not 180 to 190 but 130. Look behind the curtain, and you will find that not one restaurant – not one – served their coffee as hot as McDonald’s, which was as hot as the water in a car’s radiator. No, it is neither a consumer’s common experience nor common sense that coffee would be that hot. That is critical, because it leads you right to the second “how.”
Two, how quick? How quickly would someone have to remove saturated garments in order to avoid serious burns? You heard the science – at 180-190 degrees, not much time. Between two and seven seconds. McDonald’s position is that Stella Liebeck – a seventy-nine year old woman with her grandson in the car – should have removed her clothing…in two to seven seconds. Look behind the curtain, and the fact that they are even taking that position shows how unexpectedly dangerous this product is when served at scalding temperatures. Who would expect that? And that gets us to the third “how.”
Three, how would you know? How would the average person know that the coffee in their cup is so hot that it is capable of causing nearly instant third degree burns? The company’s position, and probably the average person’s perception, is that “coffee is hot.” Of course it is hot. But so hot that it can cause permanent damage and disfigurement? It would be one thing to say coffee should never be sold that hot, but that is not what we’re saying. Instead, we’re saying that if it is unexpectedly hot, then there should be a warning. That is the message that was never given, the warning that was never made. Look behind the curtain and you see a temperature that was unexpectedly high and instantly damaging, but you see no warning. So, finally….
Four, how do you get a corporation’s attention? When a company makes $1.3 million a day in coffee revenue alone, then you apparently need to be pretty loud to be louder than the sound of change hitting the cash register. Apparently, seven hundred prior incidents and complaints – seven hundred – was not loud enough. For years, McDonald’s has been selling coffee at unreasonably dangerous temperatures, and they continue to do so. What is most important in what we do here today is the message that McDonald’s walks away with. We looked behind the curtain at their revenue, and you’ll remember that one week of coffee sales is $9.1 million. That is the type of number that just might get McDonald’s attention.
In the end, there are four things that McDonald’s did not dispute because they cannot dispute.
One, McDonald’s did not dispute “how hot.” – 180 to 190 degrees, and that is their policy.
Two, McDonald’s did not dispute “how quick.” There was no scientific evidence that Ms. Liebeck would have possibly had more than seven seconds – at the very most – to get the scalding liquid away from her skin.
Three, McDonald’s did not dispute “how would you know” – the label. They don’t have a warning, and you heard witness after witness from the company say that they don’t yet understand why they would need one.
Four, McDonald’s cannot dispute the permanent damage Ms. Liebeck suffered. Because that is a medical fact.
In this case, you need to pay all kinds of attention to the man behind the curtain. When you do, you will see an unexpected danger, a complete absence of warning, a devastating injury, and a need for a message.
Photo Credit: Stephen Cummings, Flickr Creative Commons