by Dr. Ken Broda Bahm:
The two terms are often used interchangeably, but “rebuttal” doesn’t mean the same thing as “refutation.” The latter amounts to an attack on the arguments of the other side, and the former means rebuilding your own arguments after they’ve been attacked by the other side. Trial lawyers have a practical understanding of that difference, especially as they prepare for the phase in advocacy that carries that name. In rebuttal, the focus is on spending time (usually not enough time) on mending the blows that the other side was able to inflict. Thankfully, that formal time called “rebuttal” is not the only time when the more general goals of rebuttal can be pursued.
At other times throughout trial, you should focus on repairing the damage that the other side either has inflicted or is expected to inflict. Even a plaintiff’s opening statement can include a pre-emptive focus on where your case is going to get hurt. By answering the argument in advance, you’re helping jurors to develop an immunity to that argument once they eventually do hear it. The problem with this approach is that, because the focus is defense, it can come off a little defensive. The challenge is to rebuild in a way that conveys strength. One simple technique that can apply in nearly all situations is a focus on what I call “The untouchables.” Those are aspects of your case that the other side cannot deny. So it is not “untouchable” in the sense of Elliot Ness and his team of crusading gangbusters, but more like “untouchable” in the sense of M.C. Hammer’s “Can’t touch this….” Focusing on as many points as possible that the other side will not be able to substantively defeat provides a little insurance against their attacks and does so in a way that conveys offense, not defense. In this post, I’ll share my thoughts on four times in the trial sequence where the advocate can touch on their untouchables.
Untouchables In Closing
The most obvious place to rebuild your argument by emphasizing everything they haven’t denied is closing argument. Ultimately, closing is about sealing the proof, or preventing the other side from sealing theirs. And sometimes, the analytical lawyer in you will say, “but it doesn’t really matter that they didn’t deny that, because that alone isn ‘t enough to fully make or fully refute a claim.” Certainly, you don’t want to deny points that no one would expect to be contested (They never denied their company was registered in Georgia!), but when the point they can’t touch is at least part of an argument against them, emphasize it even when it doesn’t fully check all the legal boxes:
Ms. Smith never denied a long pattern of imperfect employment evaluations.
She never denied that she failed to show up for her counseling session.
And she never denied that it was she herself who resigned from her position.
Untouchables In Witness Re-Examination
Another place where you can end on some uncontested notes is in re-examination of your own witnesses. Of course, there are rules of evidence that will prevent you from gratuitously repeating testimony just to make an impression. But where you think you can tie it to cross, or otherwise can escape an objection, end in a way that puts an emphasis on the points of testimony that were never challenged:
So you didn’t hear counsel or the opposing expert challenge your methods?
And was there a response to the two case studies you mentioned earlier to the jurors?
So, as far as you recall, this jury has not heard a reason why the statistical association you noted is anything but reliable?
Untouchables In Opening
Opening statements occur before jurors hear any evidence, so that isn’t the time to seal the deal on your verdict. But it can be a great time to identify the untouchable points in advance. As jurors are about to get into the testimony, you can let them know what to listen for, highlighting a few points that the other side cannot answer and likely won’t address:
The plaintiff is about to begin their case. As you hear their witnesses and as you see their document, listen for two things:
One, are they ever proving the contract is invalid and, somehow, not binding on both parties?
And two, are they ever proving that they complied with the notice provision in the agreement?
Listen for that evidence. I predict that you aren’t going to hear proof from them on either point.
Untouchables In Voir Dire
One final point where the trial lawyer ought to think about what cannot be touched is in voir dire. While selecting jurors, your focus isn’t on responding to jurors. Instead, your focus is on just noting what they say and striking the bad ones. The act of spending time talking with a group about the higher-risk factors of your case, however, can sometimes leave a negative vibe hanging in the air. You need to focus on bias, of course, but it can leave potential jurors with the sense that, “Man, there are more than a few things a person could hold against this case….” To counter that negativity, it can be a good step at the end of voir dire to close with a few questions that everyone will agree with:
Do you think there is information about this case you haven’t heard yet?
Do you believe that every case is unique?
Do you agree that it is important to hear both sides?
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